Seizure Of Property: Law And Lawlessness II Tope Edward

Several properties belonging to top officials of the Nigeria
Football Federation (NFF), including its president Amaju Pinnick and 2nd Deputy
President have been seized in a fresh corruption probe.

The latest investigation and seizures were carried out by
the Independent Corrupt Practices and Other Related Offences Commission’s
(ICPC).

The ICPC has published a newspaper advertisement about the
properties as seized, – half of which belonged to Pinnick. The alleged seizures
came amidst complaints of how money meant for football development allegedly
disappeared.

The raging question has been whether the EFCC, ICPC and
other anti-corruption agencies can, without inflicting violent assault on the
constitutional guarantee of presumption of innocence, and a fair hearing, seize
properties belonging to persons, who are subjects of their investigation
without (or before) trial, or before a conviction is obtained. The
questions are hinged on some constitutional provisions, specifically sections
36 (1),(2) and (5) and  44 (1), (2)(k) of the 1999 constitution of the
Federal Republic of Nigeria (as amended) which  guarantee fair hearing,
presumption of innocence and the right to own property. Sections 36
(1),(2) and (5) and  44 (1), (2)(k) of the 1999 constitution of the
Federal Republic of Nigeria (as amended) provide as follows: 

36. (1)  In the determination of his civil rights
and obligations, including any question or determination by or against any
government or authority, a person shall be entitled to a fair hearing within a
reasonable time by a court or other tribunal established by Law and constituted
in such manner as to secure its independence and its impartiality.

Without prejudice to the foregoing provisions of this
section, a law shall not be invalidated by reason only that it confers on any
government or authority power to determine questions arising in the
determination of a law that affects or may affect the civil rights and
obligations of any person if such law, Provides for an opportunity for the
person whose rights and obligations may be affected to make representation to
the administering authority before that authority makes the decision affecting
that person; and Contains no provision making the determination of the
administering authority final and conclusive.

(5)  Every person who is charged with a criminal
offence shall be presumed to be innocent until he is proved guilty provided
that nothing in this section shall invalidate any law by reason only that the
law imposes upon any such person the burden of proving particular
facts.  

44 No moveable property or any interest in any immovable
property shall be taken possession of compulsorily and no right over or
interest in any such property shall be acquired compulsorily in any part of
Nigeria except in the manner and for the purposes prescribed by the
law….Nothing in subsection (1) of this section shall be construed as affecting
any general law; (k)  Relating to the temporary taking of possession of
property for the purpose of any examination, investigation or inquiry.

According to the ICPC, the NFF bosses led by Pinnick are
currently under three separate corruption probes including a 17-count charge in
courts ranging from failure to declare assets and embezzling $8.4 million (7.5
million Euros) paid to the federation by world football governing body FIFA.

Further reports indicate that Pinnick, Dikko and three other
top officials are to appear before a Federal High Court Abuja on September 26
over alleged diversion of FIFA grants; hence the seizure of some of their
properties by ICPC.

It is pertinent to note that the procedure for interim seizure
or forfeiture of properties of persons who are subject of criminal
investigation by Anti-Graft Agencies is donated by of Section 17 of the Advance
Fee Fraud and other fraud Related Offences Act, 2016. The slightest departure
from the procedure spelt out in the Act and other similar Acts would therefore
render the seizure forfeiture unlawful. For an illustrative examination of
the constitutional guarantees available to Amaju Pinnick and other persons
(stated above) compared with the constitutionality or otherwise of the alleged
seizure of properties belonging to Mr. Pinnick and others, we call  a
recent decision of the Supreme Court in La Wari Furniture & Baths ltd V
Federal Republic of Nigeria (2019) 9 NWLR Part 1677, 262 and the buildup thereto
in aid.

Sometime in 2015 the EFCC received an intelligence report
stating that funds suspected to be proceeds of unlawful activities were housed
in a bank account with Account No. 2110001712 domiciled with Skye Bank PLC in
the name of Dame Patience Jonathan and another Account with Account No
2022000760 domiciled with Eco Bank Nigeria Ltd in the name of La Wari Furniture
& Baths Ltd. The intelligence report was subsequently analyzed and
found worthy of critical investigation.

During investigation, it was discovered that after the
opening of the said accounts, several huge cash deposits in United States
Dollars were made to the account. It was also discovered that one Dudafa
Waripamo Owei who was the Senior Special Assistant to the former President
Goodluck Ebele Jonathan was one of the frequent depositors in the said account.

Another frequent cash depositor of funds reasonably
suspected to be proceeds of unlawful activities into the said accounts is one
Festus Iyoha Isidahomen , a steward at the state house Abuja. The said
Festus was also making deposits with fictitious names. Between the 8th of
February, 2013, and 30th of January, 2015, the sum of about $6,791,599,64 (six
Million, Seven Hundred and Ninety One Thousand, Five Hundred and Ninety Nine
United States Dollars, Sixty Four Cents) suspected to be proceeds of unlawful
activities were deposited into the said account in cash. Former, First Lady,
Mrs. Dame Patience Jonathan had dissipated these funds leaving a balance of the
sum of $5,731,173,55 (Five Million Seven Hundred and Thirty One Thousand, One
Hundred and Seventy Three United States Dollars, Fifty Five Cents)
. Investigations would later disclose that the sum of N2,421,953,522.78
(Two Billion, Four Hundred and Twenty One Million, Nine Hundred and fifty 

Three
Thousand, Five Hundred and Twenty Two Naira and Seventy Eight Kobo only) were
lodged in the Accounts with eco Bank Nigeria Ltd in the name of LA Wari
Furniture and baths Limited.

The staggering discovery left the EFCC with grave concerns.
As the commission was concerned that if these funds were left in the bank
accounts as it were, and not seized/forfeited in the interim, the operator of
the account former 1st lady would fully, dissipate the funds warehoused in the
account before EFCC could secure a conviction or an order or Court to forfeit
the said sums of money to the Federal Government.

The EFCC therefore filed a Motion Ex Parte at the Federal
High Court (the Trial court) pursuant to the provisions of Section 17 of the
Advance Fee Fraud and other fraud Related Offences Act, 2006 seeking an interim
forfeiture of the said amount to defeat the possibility of a desperate
dissipation  of the sums by the former 1st lady. The trial court granted
the Ex parte Application on the 26th April, 2017.

Dissatisfied with the interim order of forfeiture by the
trial court, the Appellant appealed to the court of Appeal, Lagos Division,
which dismissed the appellant`s appeal. Further aggrieved by the judgment of
the lower court, the appellant appealed to the Supreme Court. The Supreme
Court, in a well-reasoned judgment declared the interim seizure/forfeiture
lawful.

The interim forfeiture of properties linked to NFF
President, Amaju Pinnick,  the 2nd Deputy President,  Shehu Dikko’s
and others, as well as the interim forfeiture of sums found in the accounts in
the case redacted above find their full legality in provisions of Section 17 of
Advance Fee Fraud and other Fraud related Offence Act, No 14 2006 which reads:

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 Act Commission Act
of 2004 or any other Law enforceable under the Economic and Financial Crimes
Commission Act, 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
an unlawful activity under the Act stated in this subsection, make order that
the property or the proceeds from the sale of such property be forfeited to the
Federal Government of Nigeria.

(2)  Notwithstanding the provision of subsection (1) of
this section, the High Court shall not make an order of forfeiture of the
property or the proceeds from the sale of such property to the Federal
Government of Nigeria until notice of publication as the High Court may direct
has been given or made for any person, corporate or financial institution in
whose possession the property is found or who may have interest in the property
or claim ownership of the property to show cause why the property should not be
forfeited to the Federal Government of Nigeria.

(3)  Application under subsection (1) above shall first
be made by a motion Ex Parte for interim forfeiture order of the property
concerned and the giving of the requisite Notice or Publication as required in
subsection (2) of this section.

(4)  At the expiration of 14 days or such other period
as the High Court may reasonably stipulate from the date of the giving of the
notice or making of the publication stated sub subsection (2) and (3) of this
section, an application shall be made by Motion on Notice for the final forfeiture
of the property concerned to the Federal Government of
Nigeria  Looking closely at the provision of Section 17 of the Act
(supra) it provides that after identifying an abandoned property, or property
which is reasonably suspected to be obtained from proceeds of crime, the
relevant authority should first and foremost apply Ex Parte to the court in
order to preserve the property from being dissipated, tampered with, or
disposed of in any manner. After granting the interim order, the court is
required to simultaneously make an order for publishing its order for interim
forfeiture at large so that anyone who might be affected by such order could
appear in court to show cause why the final order of forfeiture would not be
made or granted. It must be emphasized that the Ex Parte Interim Relief
Application when granted must be published in order to put the party affected
on notice so that he can appear and show cause (why the property should not be
forfeited to the Federal Government). If such party appears, and sufficiently
shows cause, then the court will not forfeit the property. But where the party
so affected fails to appear or fails to show cause (why the property or monies
should not be forfeited to the Federal Government) then the final forfeiture
order shall be granted by the court.

Clearly, sections 17 of the Act envisage that the party
affected by an interim Order of Seizure/Forfeiture has the liberty and chance
to challenge the interim order for forfeiture. One can therefore conclude, as
the courts have decided,   that there is no infringement or
infraction of section 36 of the constitution once such procedure is strictly
followed. It is also instructive to note that any order of “interim
forfeiture” as the name implies is temporary in nature, and not a final order
since a final order will always follow upon failure on the part of the person
affected, to show cause why such forfeiture could not be finalized if it/he
could not establish that the properties were not ill gotten or obtained through
illegal activities. See 7up Bottling Company Limited V Abiola & Sons Ltd
(1995) 3 NWLR (Part 383) 257.

The Interim forfeiture procedure is therefore a mechanism
for preserving the res or property or sums of money, suspected to be proceeds
of crime from being wasted by the suspect dissipated until a court hearing of
both parties, (the owner of the properties or monies and the Federal
Government).  

Without the mechanism in place, the properties might be
dissipated, altered, sold, withdrawn or even passed on to unsuspecting third
parties, or destroyed by the suspect. Undoubtedly, this will render the
Judgment or a conviction. In the case of 7up Bottling Company Limited V Abiola
& Sons Ltd (1995) 3 NWLR (Part 383) 257, the Supremem Court at page 285
held:“the orders to be made by the court unlike final decisions are temporary
in nature so that they do not determine the rights and obligations of the
parties in the proceedings as envisaged by the constitution.”It is the Law, and
it is safe therefore to conclude that Section 17 of the Advance Fee Fraud and
other related Fraud Offences Act and by extension, Sections 28 and 29 of the
EFCC Act are not in any way in breach of constitutional provisions. Neither are
they in conflict with any provision of the constitution. The rationale for
the unique mechanism is that time available for taking steps may be too short
or any emergency situation may have arisen. It therefore becomes necessary to
take quick action in order to seek remedy for or arrest the situation. It is in
respect of such cases that provisions are made in court rules to enable the
party affected to make Ex Parte Applications. 7up Bottling Company Limited V
Abiola & Sons Ltd (1995) 3 NWLR (Part 383) 257, the Supreme Court at page
285 referred to in La Wari Furniture & Baths ltd V Federal Republic of
Nigeria (2019) 9 NWLR Part 1677, 290, Para HIt is therefore the settled law
that the interim forfeiture/ seizure of Messers NFF President and Second Deputy
Dikko`s properties pursuant to the grant of ICPC`s Ex parte Motion by the
court, has neither caused any infringement on either the NFF President or his
Second Deputy`s Fundamental rights to fair hearing as guaranteed in Section 36
of the constitution In the case at hand, what is at stake is the
preservation of the Res, and not the conviction of Pinnick and his Second
Deputy is not in issue at this stage of what might later become a full blown
trial, the climax of which would either be a conviction or an acquittal, at
which point, the anti-graft agency would either return the properties to the
suspect, if the court is satisfied that the properties or monies are not
proceeds of crime. Otherwise, the properties would be permanently forfeited to
the Federal Republic of Nigeria.

The provisions of the Advance Fee Fraud and Other Related
Fraud Offences Act and the EFCC Act under consideration  are therefore
sound laws which are not in conflict with Sections 36 and 44 of the 1999
constitution. Rather, they are one of the many mechanisms by which this
country, in keeping with the global trends, seeks to address and curb
incidences of advance fee fraud and other financial crimes. 

Tope Edward Fagbamigbe Legal Practitioner & Radio
Host based in Ibadan.