NATURE OF CRIMINAL PROCEEDINGS UNDER SECTION 17 OF THE ADVANCE FEE FRAUD AND OTHER FRAUD RELATED OFFENCES ACT, 2006

CASE TITLE: ADIGUN v. EFCC & ORS (2020) LPELR-52302(CA)

JUDGMENT DATE: 29TH DECEMBER, 2020

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

LEAD JUDGMENT: EBIOWEI TOBI, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on an Order of forfeiture.

FACTS

This appeal is against the judgment of Hon. Justice C.M.A. Olatoregun of the Federal High Court sitting in Lagos delivered on 16/1/2029 in Suit No. FHC/L/CS/932/2018 – Air Vice Marshal Jacob Bolaji Adigun vs. Economic and Financial Crimes Commission & 2 Ors.

The facts of the case at the Federal High Court was based on the Motion on Notice of the 1st Respondent (then Applicant) brought under Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006. The 1st Respondent in its application sought the following reliefs to wit:

“1. AN ORDER of final forfeiture to the Federal Government of Nigeria the total sum of N2,244,500,000.00 (Two Billion, Two Hundred and Forty-Four Million, Five Hundred Thousand Naira) found and recovered by the Commission from the 1st Respondent in Lagos which sum is reasonably suspected to be proceeds of unlawful activity.

​2. AN ORDER of final forfeiture to the Federal Government of Nigeria the total sum of N190,828,978.15 (One Hundred and ninety Million, Eight Hundred and Twenty-Eight Thousand, Nine Hundred and Seventy-Eight Naira, Fifteen Kobo) found and recovered by the Commission from the 2nd Respondent which sum is reasonably suspected to be proceeds of unlawful activity.

3. AN ORDER of final forfeiture to the Federal Government of Nigeria the total sum of N101,000,000.00 (One Hundred and One Million Naira) found and recovered by the Commission from Solomon Enterprises, a business name of the 1st Respondent which sum is reasonably suspected to be proceeds of unlawful activity.

4. And for such further or other Orders as this Honourable Court may deem fit to make in the given circumstances.”

The ground upon which the application was premised was on reasonable suspicion that the monies sought to be attached were proceeds from an unlawful activity diverted from the Federal Government of Nigeria. The application was supported by a 12-paragraph affidavit and some exhibits. The Appellant and the 2nd Respondent in this appeal filed a counter affidavit to the motion and also a motion on notice seeking to set aside or discharge the interim order as well as affidavit to show cause and further affidavits.

The Federal High Court after taking the application and the arguments of counsel delivered a considered judgment granting the reliefs sought by the Respondent and gave a final forfeiture order. Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The Court determined the appeal on these issues couched as follows:

1. Whether an action for forfeiture of assets under Section 17 of the Advance Fee Fraud and Other Related Offences Act can lie against res which is the subject matter of an ongoing suit and whose owners are undergoing criminal trial over the same thereby rendering the final forfeiture of January 16, 2019 justifiable in the face of criminal proceedings presently before Justice Aneke J., of the Federal High Court?

2. Whether the final order of forfeiture granted to the 1st Respondent can be sustained against the clear and unambiguous provisions of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006?

In determining the appeal, the Court of Appeal stated with clarity the nature of Criminal trials commenced pursuant to Section 17 of the Advance Fee Fraud and Other Related Offences Act and the general criminal proceedings.

DECISION/HELD

On the whole, the Court found no merit in the appeal and accordingly dismissed same. RATIOS:

• CRIMINAL LAW AND PROCEDURE – CRIMINAL TRIAL/PROCEEDINGS: Difference between proceedings under Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 and general criminal proceedings
• EVIDENCE – BURDEN OF PROOF/STANDARD OF PROOF: Burden of proof and standard of proof on the EFCC in a forfeiture proceeding
• JUDGMENT AND ORDER – ORDER OF FORFEITURE: Procedure to be followed under Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 for an order of forfeiture to stand