Seizure Of Property: Law And Lawlessness -By 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 propertieas 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 ladyThe 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.