UNDERSTANDING THE FORFEITURE OF PROPERTIES TO THE FEDERAL GOVERNMENT: A REVIEW OF THE COURT OF APPEAL’S DECISION IN ALISON-MADUEKE -V- E.F.C.C (2024) 1 NWLR (PT. 1918) 101
Introduction
In recent years, public notices by the Economic and Financial Crimes Commission (EFCC) announcing the forfeiture of properties to the Federal Government have become increasingly common. It is also not unusual to see an inscription in red ink on the fence of a property announcing that the EFCC has taken over the property by an interim order of forfeiture.
Section 17 (1) of the Advance Fee Fraud and Other Related Offences Act, 2006 (“ the AFF Act”) endows the EFCC with the power to approach any High Court to secure an order of forfeiture against any unclaimed property or property that is reasonably suspected to be the proceeds of some unlawful activity under the AFF Act, the Money Laundering Act of 2004, the Economic and Financial Crimes Commission Act of 2004 or any other law enforceable under the EFCC Act.
In the recent decision of Alison-Madueke v. E.F.C.C. (2024) 1 NWLR (Pt. 1918) 101, the Court of Appeal had the opportunity to clarify the procedure for applying for a forfeiture order and the procedure for challenging a forfeiture order. The decision also addressed the constitutionality of the forfeiture process under Nigerian law, providing valuable insights into the legal landscape surrounding the forfeiture of properties in Nigeria.
SUMMARY OF THE FACTS OF ALISON-MADUEKE -V- E.F.C.C.
The Appellant, a former Minister of Petroleum, faced an application from the EFCC for the interim forfeiture of 2,141 pieces of jewellery valued at $40 Million. These items were discovered in her residence, and the EFCC alleged that she acquired them through unlawful activities during her tenure as a Minister of the Federal Republic of Nigeria. The EFCC commenced the forfeiture proceedings through an ex-parte application, and it presented documentary evidence to demonstrate that the value of the jewellery significantly exceeded the Appellant’s income as a Minister, thereby showing that she acquired them through an unlawful activity. Additionally, the EFCC highlighted that the Appellant failed to disclose her ownership of the jewellery in her Asset Declaration Form, which she submitted upon her appointment as a Minister.
After the Federal High Court granted the interim order of forfeiture, the Appellant filed an application seeking to set aside the forfeiture order on the ground that the pieces of jewellery were gifts, which she received while serving as a Minister and that she equally acquired them during a period spanning nearly fifty years before she was appointed a Minister. However, the Federal High Court was not satisfied with the Minister’s explanation and granted a final order of forfeiture of the jewellery to the Federal Government.
The Minister appealed against the Federal High Court’s decision to the Court of Appeal on six grounds. Central to her appeal were claims that the Federal High Court erred in granting the final order of forfeiture without a substantive lawsuit pending against her and that the final forfeiture order violated her constitutional right to own properties. Additionally, the Minister contended that the final forfeiture order was unjustified because no Court had convicted her of a criminal offence.
The Court of Appeal dismissed the Minister’s appeal and held that section 17 of the AFF Act gave the EFCC the power to apply for a forfeiture order without conviction for an offence through an ex-parte application. The Court of Appeal also held that a forfeiture proceeding was a civil proceeding targeted at the property and not the owner of the property. Furthermore, the Court of Appeal held that a forfeiture proceeding was constitutional and that the Minister failed to demonstrate that she acquired the jewellery through legitimate means. The Court of Appeal concluded its judgment by holding that the appropriate way to challenge an interim forfeiture order is for the owner of the property to file an affidavit to show cause explaining why a final order of forfeiture should not be granted rather than filing an application seeking to set aside the interim order of forfeiture. At Page 132, Para D-H of the law report, Ikyegh, JCA, held as follows:
“The burden of proof placed on the appellant to show cause is on the balance of probability as the fact of how she came into possession of the pieces of jewellery (supra) is specially within her knowledge, thus placing the burden of proving that particular fact upon the appellant vide section 140 of the Evidence Act read with section 36(5) of the 1999 Constitution to the effect that nothing in section 36 dealing with fair hearing shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.
Section 17(3) and (4) of the AFF Act empowers the application to be made ex parte which is the form of commencement of the proceedings stipulated by the AFF Act 2006 and being the particular mode prescribed by statute the respondent was entitled to commence the proceedings by an ex parte application.
Section 17(4) thereof lays down the step to take after the ex parte order of interim forfeiture is made for the making of the final order of forfeiture. Section 17(6) of the AFF Act, also, emphasizes that an order of forfeiture under this section shall not necessarily be based on a conviction for an offence under the Act or any other law.
Going strictly by the statutory provisions (supra) the application to set aside the interim order of forfeiture of the pieces of jewellery was inappropriate in the circumstances of the case as rightly held by the court below.”
Instructively, in arriving at its decision in Alison-Madueke v. E.F.C.C. (Supra), the Court of Appeal relied on the decision in Dame Patience Jonathan v. F.R.N. (2019) 10 NWLR (Pt. 1681) 533, where the Supreme Court held that section 17 of the AFF Act provides for the power to make an order of forfeiture without conviction for an offence.
TAKEAWAY FROM THE COURT OF APPEAL’S DECISION IN ALISON-MADUEKE -V- E.F.C.C.
From the Court of Appeal’s decision, we can deduce the following:
- Section 17(1) of the AFF Act empowers the EFCC to approach any High Court through an ex-parte application to secure a forfeiture against any unclaimed property or property reasonably suspected to be derived from unlawful activities.
- Section 17(1) of the AFF Act is not restricted to real estate; it encompasses all forms of property or assets that may be subject to forfeiture.
- Individuals or organizations who wish to contest an interim forfeiture order must file an affidavit to show cause demonstrating why a final forfeiture order should not be granted against them.
- The AFF Act does not recognise the filing of an application to set aside an interim forfeiture order.
- A party seeking to prevent the issuance of a final forfeiture order regarding their property must provide evidence, on the balance of probabilities, to establish the lawful acquisition of the property.
- Forfeiture proceedings are civil in nature, targeting the property itself rather than the owner. Therefore, a forfeiture order can be granted without the need to convict or file a criminal charge against the property owner.
- Political officeholders must include a comprehensive list of all their valuables, including jewellery and luxury wristwatches, which they acquired before their appointments or election, in their Asset Declaration Forms.
It should be noted that this article is for general information only and is not offered as advice on any particular matter, whether legal, procedural, or otherwise. If you have any questions about the issues raised in this article, please get in touch with the author at foa@abdu-salaamabbasandco.com .
