The Respondent suspected that the sum of N2,421,953,522.78 was lodged into Account No. 2022000760 with Ecobank Nigeria Ltd, in the name of La Wari Furniture & Baths. The said amount, was suspected to be proceeds of unlawful activities. Further to this, the Respondent filed a motion ex-parte at the Federal High Court pursuant to the provisions of Section 17 of the Advance Fee Fraud and Other Related Offences Act 2006, seeking an interim forfeiture of the said amount. The interim order was granted, as prayed. Dissatisfied, the Appellant appealed to the Court of Appeal, which dismissed its appeal. Further aggrieved, the Appellant appealed to the Supreme Court.
ISSUES FOR DETERMINATION
1. Whether Section 17 of the Advance Fee Fraud and Other Related Offences Act, Cap 14 of 2006, violates or is in conflict with the provisions of Sections 33 and 44 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
2. Whether the proceedings commenced under Section 17 of the said Act for an order of forfeiture, is an action in rem, and an application for civil procedure as held by the Court of Appeal.
3. Whether having regard to the onus placed on the application under Section 17 of the Advance Fee Fraud Act of general civil proceedings at the Federal High Court, there were sufficient materials placed before the Federal High Court to have validated the orders made, as held by the Court of Appeal.
On issue one, counsel for the Appellant submitted that, Section 17 of the Advance Fee Fraud and Other Related Offences Act, Cap 14 of 2006 shows that, by its purport and intendment, it is a penal legislation that purports to give the High Court unfettered power, not only to make an order of interim forfeiture against a citizen’s property ex parte, but also to make a permanent order finally forfeiting the said properties to the Federal Government. He argued that, Section 17 of the Act is in conflict with Section 36(1) of the Constitution and the right of fair hearing, presumption of innocence, and the right to own property, and is thus null and void.
Conversely, counsel for the Respondent submitted that, the section has an inbuilt mechanism to ensure fair hearing, as it prescribed that the Economic and Financial Crimes Commission (EFCC), should after identifying abandoned properties reasonably suspected to be proceeds of crime, to first of all apply to court ex parte for an interim order of forfeiture, so as to preserve the properties from being dissipated. He argued that Section 17 of the Act also presupposes that there would be a final order after the interim order, and before the final order is made, the affected party is expected to come to show cause, why the interim order should not be made the final order. He submitted that, the provision sufficiently thus complied with the provision of Section 36(1) of the Constitution.
On issue two, counsel for the Appellant argued that, even if the proceedings under Section 17 of the Act are civil in nature, then the section is still invalid, to the extent that, what it prescribes is not a civil penalty, but a criminal punishment for forfeiture. He also submitted that, the opinion of the court below that the application at the trial court was an application in Rem is erroneous, because an application or proceeding in Rem has its own procedure.
On issue three, counsel for the Appellant argued that, the affidavit attached to the application was bereft of any sufficient material to warrant the order made by the Federal High Court. He argued that, the Respondent did not show that the Appellant got the money, in the circumstance which makes it to be proceeds of unlawful activities. He then submitted that, the failure of the Respondent to show germane particulars, should have led the court to refuse the grant of the application.
On the other hand, counsel for the Respondent argued that, both the trial court and the lower court made concurrent findings that the materials placed before the court, were sufficient enough to justify the grant of the application. He referred to the intelligence report received by EFCC with regard to the said Appellant’s account, as well as the statement on oath of a staff of the bank. He submitted that, in the absence of any contrary evidence, the final order of forfeiture made by the trial court was lawful, and in order. Court’s Judgement and Rationale On the first issue, the court held that, the provisions of Section 17 of the Advance Fee Fraud and Other Related Offences Act, 2006, had stipulated that the Economics and Financial Crimes Commission should, after identifying an unclaimed property or properties reasonably suspected to be proceeds of crime, to first apply ex-parte to the High Court for an interim order of forfeiture, so as to preserve the properties from being dissipated. The section further imposes a duty on the court granting the interim forfeiture order, to direct the applicant to publish the order, and notify anyone who might be affected by the order, so that the affected party would approach the court, to show why a final order of forfeiture should not be made. The court went further to hold that, in an application ex parte and the ensuing order if granted, the question of fair hearing does not come to play, as ex parte simply means, “in the absence of the other party”, and in the case at hand, what was at stake is the preservation of the res. Relying on EASI DANGABAR v FRN (2014) 12 NWLR Part 1422, 575 at 607-608, the court held that, both the interim order and Section 17 of the Act are consistent with Section 36 of the Constitution, because they provide an opportunity to the person to make representations to the trial High Court, before it makes its final order affecting such person’s rights and obligations.
On the second issue, the court held that, an action in rem is one in which the subject- matter itself is sought to be affected, and in which the claimant is enabled to arrest a ship or other property, and to have it detained until the claim is adjudicated upon. The court placed reliance on RHEIN MASS UND SEE & ORS. v RIVWAY LINES LTD (1998) 4 SC 73. The court held that, the purpose of making an ex-parte order is to preserve the res, prevent its dissipation, pending when all the parties can be heard. Therefore, as rightly held by the Court of Appeal, the interim order of forfeiture under Section 17 of the Act, is a non-conviction order based forfeiture, and the proceeding is an action in rem.
On the third issue, the court held that, as a matter of practice, the Supreme Court is always hesitant to interfere with the concurrent findings of the two lower courts except in special circumstances, such as where the findings are perverse or there has been misapplication of facts or law. The court also held that, from the surrounding circumstances of the case, it was indisputable that the Respondent had placed before the trial court, and as rightly found by the Court of Appeal, sufficient evidence or materials, which would sway the trial court into granting the interim order of forfeiture. These evidence included evidence from the extra judicial statement of a staff of Ecobank who was coopted to participate in the processes leading to the lodgment of the funds in the accounts opened by the Appellant, on the history of the lodgments right from the opening of the account, its operation and day to day transactions on the account, as well as how some of the funds were invested in favour of the Appellant. The court further held that, there was no evidence controverting the affidavit evidence adduced in support of the Respondent’s motion ex-parte. The Court of Appeal was also on the right track, when it unhesitatingly approved and endorsed the order of the trial court granting the said application, and the Supreme Court had no reason to interfere with the concurrent findings of facts. Appeal Dismissed.
Chief Mike Ozekhome, SAN with Godwin Ijubor, Chinedu Maduba, Oluchi Uche, Osilama Mike Ozekhome for the Appellant.
Rotimi Oyepo PDS, EFCC with Hadiza Afegbua PDS, EFCC for the Respondent.