Illicit Fund Origins: Understanding Burden of Proof under the Advance Fee Fraud and Related Offenses Act

CASE TITLE: YUSUF v. EXECUTIVE CHAIRMAN EFCC
(2023) LPELR-60652(CA)

JUDGMENT DATE: 26TH JUNE, 2023

JUSTICES: YARGATA BYENCHIT NIMPAR, JCA
JAMES GAMBO Abundag, JCA
ABDUL-AZEEZ WAZIRI, JCA

DIVISION: ABUJA

PRACTICE AREA: EVIDENCE

FACTS:
This appeal is against the judgment of the Federal High Court, Abuja, delivered by Justice Ijeoma Ojukwu.

The Respondent instituted the action against the Appellant via an ex parte originating summons, seeking the following orders:

1. An interim order of this Honourable Court forfeiting to the Federal Government of Nigeria all the monies in the Bank accounts mentioned in the schedule attached to this summons
2. An order of this Honourable Court directing the publication of a notice in the Daily Trust newspaper and the EFCC website inviting all persons/bodies who may have an interest in the said monies to show cause why they should not be forfeited to the Federal Government of Nigeria
3. Such further order or orders as the Honourable Court may deem fit to make in the circumstances

The Court granted the relief sought by the Respondent. The Appellant, in opposing the order made against him, filed an affidavit to show cause, disclosing why the monies found in the accounts linked to him should not be forfeited. The appellant also filed a further affidavit to show cause. The Respondent/Applicant also filed other processes in response.

The Court made the interim order for forfeiture final based on the processes that were before it and entered judgment in favor of the Respondent. Dissatisfied with the decision of the Court, the appellant appealed to the Court of Appeal.

ISSUE(S) FOR DETERMINATION:

The issues for determination were:

“a. Whether the Court below had jurisdiction to make a final forfeiture order against the Appellant based on ex parte originating motion and in the absence of a motion on notice praying for such an order?

b. Whether, having regard to the affidavit evidence on record and the entire circumstances of this case, there was evidence before the Court below that the monies found in the Appellant’s accounts were proceeds of crime and if the answer is in the negative, whether the learned trial Judge was right in making the final forfeiture order against monies in the accounts of the Appellant.”

COUNSEL SUBMISSIONS:

The Counsel to the Appellant stated that Section 17 of the Act requires that the court assess the suspicion of the officers of the Respondent and satisfy itself that the property is either unclaimed or proceeds of unlawful activity based on relevant laws, such as the Advance Fee Fraud (AFF) Act, the Money Laundering Act, 2004, and the Economic and Financial Crimes Commission Act, 2004.

The Counsel argues that the Court below did not properly interpret and apply Section 17 of the Act, which led to a miscarriage of justice. The Appellant’s counsel points out that there was no evidence of unlawful activity related to the funds in question, and the Court should have discharged its duty in favor of the Appellant.

The Court is accused of delving outside the scope of the case presented by the Respondent, making findings on accounts that were not subject to investigation, which further led to a miscarriage of justice.

The Counsel emphasizes that the affidavits of the Respondent did not provide a satisfactory explanation for how the funds were proceeds of crime, and there was no evidence of the Appellant being tried or convicted for related offenses. The Appellant’s counsel contends that the Court’s decision is perverse and should be set aside in its entirety, urging the Court to allow the appeal.

In response, the Respondent argues that the suspicion regarding the Appellant’s sole signatory authority over the accounts and the failure to transfer the funds back to the Nigerian Navy account are valid reasons for suspicion.

The Respondent also asserts that the Appellant’s affidavit did not dispel this suspicion, and the owners of the monies (the Nigerian Navy) did not come to Court to show cause why the monies should not be forfeited.

Ultimately, the Appellant’s counsel urges the Court to rule in favor of the Appellant and set aside the decision and forfeiture order made by the Court below.

DECISION/HELD:
The Court of Appeal dismissed the appeal.

RATIO:
EVIDENCE – BURDEN OF PROOF/ONUS OF PROOF: Position of the law regarding the burden of establishing reasonable suspicion that funds are proceeds of unlawful activity under the Advance Fee Fraud and Other Fraud Related Offences Act
“…in interpreting the extracted phrases from the Advance Fee Fraud Act highlighted earlier, giving them literal meaning would mean that reasonable suspicion is where there are facts that raise questions that the Appellant in this case would have to explain and to the satisfaction of the Judge that the funds are not from unlawful activity.

Having a “reasonable suspicion” presupposes the existence of facts or information that would satisfy the objective that the person concerned may have committed the offense or is likely to commit the offense.

This was the decision of the Court in UBOCHI v. EKPO & ORS (2014) LPELR-23523(CA). The test of what is reasonable suspicion is not as high as establishing a prima facie case as Lord Devlin in SHASBAN BIN HUSSAIN v. CHONG FOOK KAM [1969] 3 ALL E.R. 1926 in an appeal from the Federal Court of Malaysia made clear in the Privy Council when he said that:

“Suspicion, in its ordinary meaning, is a state of conjecture or surmise where proof is lacking; ‘I suspect but I cannot prove.’ Suspicion arises at or near the starting point of an investigation, of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if arrests before that were forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It means that there is executive discretion. In the exercise of it, many factors have to be considered besides the strength of the case. The possibility of escape, the prevention of further crime, and the obstruction of police inquiries are examples of those factors with which all Judges who have had to grant or refuse bail are familiar. There is no serious danger in a large measure of executive discretion in the first instance because, in countries where common law principles prevail, the discretion is subject indirectly to judicial control. See also OTERI V. OKORODUDU & ANOR (1970) LPELR-2824(SC). “

It can be seen from the above decisions that the burden required of the Respondent is the existence of facts or information that would satisfy an objective mind that the person concerned may have committed the offense or is likely to commit the offense. The facts presented by the Respondent have satisfied this requirement. The expectation is not proof beyond reasonable doubt and that is why the owner of the funds or property is expected to show that the funds or property are from legitimate sources and not from unlawful activity.

The satisfaction of the trial Judge was achieved when the Judge agreed that the explanation offered left the Court perplexed, left unexplained gaps, and that the Appellant failed to explain to the satisfaction of the Court. Simply put, the Court was not satisfied with the explanation and neither is this Court.

Non-conviction-based forfeiture is not a case that must be proved beyond reasonable doubt, as is required in conviction-based forfeiture. One can safely say it is based on the state of the facts, which raises suspicion as to how the funds or property were acquired. The trial Court found in favor of the Respondent because the Appellant failed to satisfy the Court below. The Appellant presented facts that did not shift the burden of proof or explain facts presented by the Respondent, to disprove the reasonable suspicion and satisfaction of the trial Judge that the funds are from unlawful activity. The case and facts brought before the Court are simple; they do not require any external aid in applying the interpretation rules. The clear words of the statute have been given meaning in order to achieve the purpose of the Legislature.” Per NIMPAR, J.C.A.

To read the full judgment or similar judgments, subscribe to Prime or Primsol