Condition(s) Precedent to the Grant of an Order of Forfeiture

CASE TITLE: KATAH PROPERTY & INVESTMENTS LTD v. CHAIRMAN EFCC (2023) LPELR-59736(CA)

JUDGMENT DATE: 9TH FEBRUARY, 2023

PRACTICE AREA: JUDGMENT AND ORDER

LEAD JUDGMENT: UGOCHUKWU ANTHONY OGAKWU, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on order of forfeiture of proceeds of unlawful activity.

FACTS:

This appeal is against the decision of the Federal High Court, Abuja Division.

The Respondent, acting on intelligence reports that monies from the coffers of Niger State Government were siphoned and that properties were bought with the said proceeds of crime or unlawful activity, proceeded against the said properties, pursuant to the non-conviction based forfeiture or civil forfeiture of assets stipulations of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act.

The Court made an order for interim forfeiture of the properties and in keeping with Section 17 (2) of the said Advance Fee Fraud and Other Fraud Related Offences Act, the Appellant filed processes to show cause why its properties should not be subjected to an order of final forfeiture. The Court, not being satisfied with the Appellant’s case, made a final forfeiture order of Appellant’s properties situate at House No. 19, Burundi Street, Zone 5, Wuse, FCT Abuja; House No. 3, Timbuktu Street, Zone 6, Wuse, FCT Abuja; House No. 12, Jimma Street, Zone 6, Wuse, FCT, Abuja and House No. 27, Lusaka Street, Zone 6, Wuse, FCT, Abuja, to the Federal Government.

​The Appellant was dissatisfied with the decision of the Court and appealed against the same.

ISSUES:

The issues for determination were:

i. Whether the learned trial Court Judge did not breach the appellant’s right to a fair hearing in the evaluation of the facts and arguments considering the statutory obligation of the respondent under Section 17 of the Advance Fee Fraud and Other Related Offences Act, 2007 to show by evidence that the properties are proceeds of unlawful activity as against the evidence provided by the appellants before reaching a decision to finally forfeit appellant’s properties to the respondent?

ii. Since the learned trial Court Judge raised the issue of the validity, non-certification and non-attestation of the Exhibits attached to the appellants’ processes suo motu, whether the learned trial Court Judge ought not to have afforded the appellant the opportunity to address the Court on the said Exhibits before making a finding on them?

iii. Whether by the lumping of the appellant’s distinctive cause with those of other claimants and the failure of the lower Court to pronounce on the facts presented to the Court in the appellant’s notice and affidavits showing cause which were not controverted by the respondent, the learned trial Judge did not err in making a final order of forfeiture of the appellant’s properties?

iv. Whether having regard to all the circumstances of this case, the learned trial Judge did not erroneously apply the Supreme Court decision in Dame Patience Jonathan Vs EFCC (2019) LPELR SC 41/201 or (2019) 2-3 SC Pt. 1 @ 158 to the case in making a final forfeiture order on the appellant’s properties.

DECISION/HELD:

In conclusion, the Court of Appeal dismissed the appeal.

RATIOS:

• CASE LAW – JUDICIAL PRECEDENT/STARE DECISIS: Whether the Court of Appeal is bound by its previous decisions and the exception(s); instances where the Court of Appeal will not depart from its previous decision
• CONSTITUTIONAL LAW – BREACH OF RIGHT TO FAIR HEARING: Whether the issue of improper consideration of affidavit evidence can be classified as an allegation of breach of right to fair hearing
• CRIMINAL LAW AND PROCEDURE – SEIZURE, RESTITUTION, FORFEITURE AND DISPOSITION OF PROPERTY: Instance where an order of forfeiture will be held to have been rightly made