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OPINION

Hushpuppism: An Exception To Presumption Of Innocence

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In the wake of the gestapo-like arrest of Nigerian Instagram sensation Raymond Igbalode popularly known as Hushpuppi in the United Arab Emirates, several well-meaning observers had asked as to whether the Nigerian investigative agencies were complacent; in that the

individual in question was well reputed to flaunt his seemingly
illicitly acquired wealth on the social media and in social gatherings
in Nigeria. Certainly, Nigerians know that there are several of these
‘Hushpuppies’ who seem to wake up into overnight opulence.
In light of the fact that every Nigerian is thoroughly covered and
protected with the Presumption of Innocence as constitutionally
enshrined, one therefore wonders if the government, based solely on
mere suspicion and bereft of any supporting evidence whatsoever, can
institute a legal proceeding against anyone with seemingly
questionable wealth?
In other words, can the government premised on the fact that an
individual is immersed in obscene opulence and inexplicably luxury,
institute a criminal proceeding? to use the words of Sen. Dino Melaye;
should the government investigate the source of people’s wealth and
not the source of their poverty? Without doubt, the last question is
not deserving of an answer, but I’ll painstakingly attempt the answer
the earlier one raised.
According to the 9th Edition of the Black’s Law Dictionary,
‘’presumption of innocence is the fundamental criminal law principle
that a person may not be convicted of a crime unless the government
proves guilt beyond a reasonable doubt, without any burden placed on
the accused to prove innocence.”
This sacred legal principle has been firmly planted in Sec 36 (5) of
the 1999 Constitution (as amended), “Every person who is charged with
a criminal offence shall be presumed to be innocent until he is proved
guilty” this seemingly simplistic provision is perhaps the bedrock of
criminal law and guides not just criminal trials but quasi criminal
trials in common law jurisdictions.

In C.O.P v. AMUTA (2017) LPELR-41386(SC) the highly cerebral Justice
Ogunbiyi, expertly espoused this constitutional provision to wit; “The
constitutional provision on the presumption of innocence of an accused
person is sacrosanct and settled. The burden is always on the
prosecution to prove the guilt of the accused and not his business to
prove his innocence. He can decide to keep mute from beginning of the
trial right through to the end. It is for the prosecution to make out
a prima facie case against the accused through credible evidence which
must be laid bare before the Court. It is the proof of hard facts that
would lead to the conviction of the accused. Without any case made out
against the accused, he cannot be called upon to enter his defense
because in doing otherwise would undermine the constitutional
presumption of innocence’’.
It is settled that everyone is presumed innocent, and you cannot
arrest and try anyone on the basis of mere suspicion neither can you
force anyone to defend themselves or prove their innocence, afterall
he that asserts must prove!
In SHUAIBU v. STATE (2018) LPELR-45023(CA) the Court of Appeal
re-echoed the time-tested principles when it held that ‘suspicion no
matter how strong cannot replace legal proof.’
However, IT MUST BE NOTED that the doctrine and principle of
presumption of innocence does not extend to property right; it is only
a person that is presumed innocent and not his chattel, real estate,
money etc. As complex and obfuscating as this may seem, it is actually
very simply and easy discernable. In the next few paragraphs, I shall
further attempt to clarify this legal position.
Since we have firmly established that everyone is deemed innocent, and
mere suspicion no matter how pungent they may seem, can never replace
evidence; one then wonders how the law enforcement agencies can muscle
up the courage to prosecute individuals that provocatively display
glaringly illicit opulence yet no shred of evidence can be used to
prosecute such fellow.
If an individual who has no job or viable business suddenly begins to
display stupendous luxury and flaunts his wealth on social media, does
that individual still enjoy the presumption of innocence? Everyone
with a functional brain knows that money does not fall from the sky,
should the individual then be prosecuted for the mere fact that he was
once broke but now he is inexplicably rich?
The answer to the preceding paragraph is yes and no. As at the last
check, it is still not a crime to become rich overnight, neither does
an individual have an obligation to publicly declare his assets save
for specific instances.

We shall continue this discussion by reproducing Section 18(3) EFCC
ACT which is impari materia with Section 15 of the Advance Fee Fraud
(and other Fraud Related Offences) Act 2006.
‘ In any trial for an offence under this Act, the fact that an accused
person is in possession of pecuniary resources or property for which
he cannot satisfactorily account and which is disproportionate to his
know sources of income, or that he had at or about the time of the
alleged offence obtained an accretion to his pecuniary resources or
property for which he cannot satisfactorily account, MAY BE PROVED and
may be taken into consideration by the Court as corroborating the
testimony of any witness in the trial’. (emphasis mine)
Simply put, this section tends to suggest that the mere fact that an
individual has inexplicable funds can be proof that he has
illegitimate or corrupt money. This provision seems to conflict
directly with the constitution, in that an individual is invariably
asked to explain his wealth or better put defend his innocence.
This Section appears to place the burden of proof on the accused, and
the mere facts that he has pecuniary resources that he cannot
satisfactorily account for may be proof that he has committed a crime.
It is difficult to accept that this provision does not intend to erode
the sacred provision of the constitution, and for clarity and
certainty sake, ‘any law that is in conflict with the constitution is
basically null and void, to the extent of its inconsistency see
Section 1(3) of the 1999 Const (as Amended).
This must have been the reasoning of the appellate court in FEDERAL
REPUBLIC OF NIGERIA V. DR. OLUBUKOLA ABUBAKAR SARAKI (2017)
LPELR-43392(CA), where the court held that ‘The Burden Of Proving
‘All’ Elements of the offence still rests on the prosecution in
conformity with the accusatorial criminal justice system the country
operates. (Emphasis mine), the standard of prove is that beyond
reasonable doubt, the prosecution must prove ALL elements of the
offence and the Defendant need not say a single word to prove his
innocence’.
The great advantage of this section to the state would be in terms of
corroborating already existing evidence, therefore if and when there
is already evidence or a witness against a suspect, the fact that the
suspect has questionable resources would corroborate the already
existing evidence.
Since every Nigerian is deemed innocent and cannot be forced to defend
his innocence regardless of the extent of suspicion, and since,
criminals and conmen are especially skilled in burying links and
traces of their crimes, one now wonders how prosecutors can based
solely on common sense, round up persons who cannot satisfactorily
explain their resources. The solution to this legal issue and the
exception to the doctrine of presumption of innocence, has been
thoroughly codified in Section 17 of the Advance Fee Fraud and (Other
Fraud Related Offences) Act 2006.
With this provision, the law enforcement agents can base on the mere
facts that anyone has either money or money’s worth way above his
ostensible means, apply to high court seeking a temporal forfeiture
order. Now if the court grants this order the defendant now has the
duty to go to the court to show course, in other words, prove that
indeed that property was not gotten from illicit or criminal
activities, failure of which the properties would be seized and
confiscated. Permit me again to reproduce the section for better
understating;

17.(1) Where any property has come into the possession of any officer
of the Commission as unclaimed property or any unclaimed property is
found by any officer of the Commission to be in the possession of any
other person, body corporate or financial institution or any property
in the possession of any 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 Commission Act of 2004 or any other law
enforceable under the Economic and Financial Crime Commission Act of
2004, the High Court shall upon application made by the Commission,
its officers, or any other person authorized by it and upon being
reasonably satisfied that such property is an 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.

A novel and ingenious feature of Section 17 of AFFA 2006 is
encapsulated in Section 17 (6) ‘An order of forfeiture under this
section shall not be based on a conviction for an offence under this
Act or any other law’. The brilliance of this section, is that the
emphasis is limited to the property and not the person as such, an
action instituted under this section is ‘sui generis’ and the
necessity to prove beyond reasonable doubt has been discharged and
shifted into the preponderance of probability(evidence). More so, the
doctrine of presumption of innocence is obviated, since no one can be
convicted or sentenced by virtue of this section. All that matters is
that properties and or money, will be forfeited to the government when
the individual fails to show satisfactory cause.
Since criminal litigation is rigid and stern and obviously very
expensive to prosecute, any sustained campaign against financial
crimes must be pursued vide the, Non-Conviction Based Asset Forfeiture
as provided for in Section 17 of the AFFA. It would save the state
more time and money, and would ultimately rapidly disincentivize
fraudsters. Anyone plying this trade would quickly realize that he is
essentially generating money for the government and criminals are not
known to be patriotic.
In OGUNGBEJE V. EFCC (2018) LPELR-45317(CA) Where the major issue for
determination was whether a trial Court had jurisdiction to proceed to
make an order for Final Forfeiture of the property pursuant to the
Respondent’s Application in the absence of an investigation,
prosecution, trial and conviction. The Court emphasized that, ‘It is
very clear from the wordings of Section 17 of the Advance Fee Fraud
and other related offences Act, 2006 as reproduced above that the law
recognizes the power of the trial Court to make an Order of Forfeiture
without conviction for an offence; that is the very essence of the
provisions of Section 17 of the Act which was emphasized in Subsection
(6), by clearly and emphatically providing that forfeiture under the
provisions shall not be based on conviction’
In conclusion, we have seen that, although the presumption of
innocence basically prevents the law enforcement agencies from
rounding up individuals with suspicious source of income and proceed
to institute criminal cases against them, by virtue of Section 17 of
the AFFA, the presumption of innocence does not extend to their
properties, therefore properties and bank account can be frozen or
seized, and the owners can be forced to defend the source of the
money, or otherwise forfeit same to the government. As mentioned
earlier, this is an easier, faster and safer approach to curb and
battle financial crimes. In the words of Eneke the bird; ‘since men
have learned to shoot without missing, the bird has learnt to fly
without perching’.

Momoh is an Abuja based lawyer, writer and public commentator

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