Responsibility of a Party Challenging the Order of Interim Forfeiture of a Property to Show That the Property Was Not Procured With Proceeds of Unlawful Activities

CASE TITLE: MARHABA EVENT PLACE LTD & ORS v. EFCC & ORS (2024) LPELR-62094(CA)

JUDGMENT DATE: 26TH APRIL, 2024

JUSTICES: HAMMA AKAWU BARKA
ABBA BELLO MOHAMMED
PETER CHUDI OBIORAH

DIVISION: ABUJA

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

FACTS:

This appeal borders on order of forfeiture.

This appeal is against the judgment of the Federal High Court, Abuja Division, delivered on the 14th day of February, 2022 wherein the trial Court made an order of final forfeiture of the twenty-four (24) properties belonging to the Appellants in favour of the Federal Government of Nigeria.

The 1st respondent instituted an action via an Originating Motion filed on May 12, 2020, seeking an order from the Court granting an interim forfeiture of the Appellants’ properties listed in a Schedule of assets/properties attached to the motion to the Federal Government of Nigeria. On May 13, 2020, the trial Court granted an interim order of forfeiture of the Appellants’ properties and directed the publication of the interim order in a National daily newspaper, inviting interested parties to show cause why a final order of forfeiture to the Federal Government of Nigeria should not be made.

In response, the Appellants filed a notice to show cause on May 29, 2020, contesting the interim forfeiture. The 1st respondent countered with an affidavit dated July 6, 2020, and the Appellants responded with another affidavit on November 2, 2020. The 1st respondent then filed a further counter-affidavit and a motion for a final forfeiture order on June 3, 2020, to which the Appellants responded with a counter-affidavit on November 3, 2020.

After hearing arguments, the trial Court issued a final forfeiture order for the twenty-four properties owned by the Appellants to be transferred to the Federal Government of Nigeria.

Dissatisfied, the Appellants filed an appeal against this judgment.

ISSUES FOR DETERMINATION:

The Appellants distilled a sole issue for determination to wit:

“Whether having regard to the materials placed before the trial Court, there was any evidence to support the findings and conclusions reached by the Court and whether the learned trial judge properly evaluated the evidence relied upon by the parties to justify the final order for the forfeiture of the properties of the Appellants to the Federal Government of Nigeria?”

The 1st Respondent distilled a sole issue for determination to wit:

“Whether having regard to the materials placed before the trial Court, the Appellant can be said to have shown cause why its properties should not be finally forfeited to the Federal Government of Nigeria in line with Section 27 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 and whether there is on record any evidence in proof of the lawful source of the assets/properties not evaluated by the trial Court?”

COUNSEL SUBMISSIONS:

Learned senior counsel to the Appellants submitted that the learned trial Judge failed to properly evaluate the affidavit and documentary evidence placed before it by the parties and thus came to a wrong conclusion that the Appellants did not show cause why their properties should not be forfeited to the Federal Government of Nigeria. He added that if the trial Court had properly evaluated the evidence placed before it, the learned trial Judge would not have made an order for the final forfeiture of the properties of the Appellants to the Federal Government of Nigeria.

Learned counsel in placing reliance on the cases of Ugochukwu v. Corporative & Commerce BAIT (Nig) Ltd. (1996) LPELR – 3320(SC), Anyaka v. Anyaka (2014) LPELR-24501(CA), Pan Asian African Co. Ltd v. NICON (Nig) Ltd (1982) 9 SC 1 at 45 – 48, argued that if the learned trial judge had considered the totality of the paragraphs of the affidavit in support of the notice to show cause, he would not have come to the conclusion that the properties were not acquired at the instance of the Appellants since the 1st Respondent did not deny the deposition in paragraph 11 of the affidavit in support of the notice to show cause where the Appellants clearly stated that the properties/assets were acquired for the business of the 3rd Appellant.

​On his part, learned counsel to the 1st Respondent while citing La-Warri Furniture & Baths Ltd v. FRN & Anor (2018) LPELR-43507(CA) submitted that under the provisions of Section 17 of the Advanced Fee Fraud Act, what a party showing cause is expected to do is to state and prove that the properties, the subject of the non-conviction-based forfeiture, were acquired with legitimate funds and not proceeds of crime.

Flowing from the above, it was further submitted that it is only when this condition is met that the properties, subject of an interim order of forfeiture, would not be finally forfeited to the Federal Government. Counsel contended that in determining the contention of the Appellants that the trial Court failed to properly evaluate the evidence placed before, it is necessary to first and foremost scrutinize and interrogate the facts placed before the Court by the Appellants in proof of the fact that the properties in question were acquired with legitimate proceeds and not proceeds of crime.

Learned counsel argued that the Appellants did not place before the trial Court any iota of evidence tending to prove that the properties were acquired with legitimate funds and as held in La-Warri Furniture & Baths Ltd v. FRN & Anor (supra), it is incumbent on a party showing cause to establish that the properties/assets sought to be forfeited are not proceeds of unlawful activities. He added that where a party has failed to show cause by proving that the funds used in the acquisition of the properties are of legitimate origin, as in the instant appeal, the question of whether the trial Court properly evaluated the evidence or not becomes of no moment.

DECISION/HELD:

In the final analysis, the appeal was dismissed.

RATIO:

JUDGMENT AND ORDER – ORDER OF FORFEITURE: Onus on an interested party to show that the funds about to be forfeited are not proceeds of any unlawful activity

“I also agree that Appellants failed to properly react to the crux of the matter, which is explaining the source of the monies used in acquiring the properties listed. Incidentally, the burden of proof lies on the Appellants which burden remained undischarged instead. Appellants by dint of the evidence of the Appellants star witness Alhaji Tanimu Abdullahi Inusa, admitting to having bought some of the properties in cash amounting to Millions of Naira and Dollars; the source of which was not explained and as held in Katah Property and Investments Ltd. Vs. Chairman (EFCC) 2023, the Appellants had the burden duty to prove that the Properties being sought to be forfeited were not procured with proceeds of unlawful activities and having failed to so do, the appeal must fail.” Per OBIORAH, J.C.A.

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