By Ebun-Olu Adegboruwa, SAN
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Introduction
The fifth part of this article which was published last week dwelt extensively on the facts of the case of Melrose General Services v Economic and Financial Crimes Commission (2025) 1 NWLR (Pt.1972) 1, being the decision of the Supreme Court, which established authoritatively the onus of proof in fundamental rights cases. In Agbaje v Commissioner of Police, (1969) 1 NMLR 137, the plaintiff, Chief Mutiyu Agbaje, was arrested and detained for over ten days without being told the reason for his arrest and the authority for it. He brought an action for a writ of habeas corpus to issue on the Commissioner of Police, Western State, for his release from detention. The complaint of the applicant was that he was unlawfully detained in the police station at Ibadan and had not been told the reason for his detention. The defendant admitted detaining the appellant and based his authority to do so on Orders Extensions 1 and 2 purported to have been made by the Inspector-General of Police by virtue of the powers granted him by the Armed Forces and Police (Special Powers) Decree and that the arrest and detention of the applicant was in the interest of public order. The Court of Appeal held in favor of the plaintiff applicant and affirmed the issue of habeas corpus by the trial court and ordered that the applicant be released forth-with. As admirably demonstrated by the Court in this case, the burden on the respondents to justify the circumstances leading to the arrest and detention of the plaintiff, had not been discharged. The focus of the Fundamental Rights (Enforcement Procedure) Rules is to inspire the Courts to determine cases involving infringement of fundamental rights with a radical and liberal approach that will secure their protection and enforcement.
DECISION OF THE SUPREME COURT IN MELROSE V EFCC
On construction of statutory provision expressly mentioning specific things or matters:
It is a rule of interpretation, which is now of general application that a syntactical presumption may be made that an express mention of a thing or matter, excludes those not mentioned. This is often expressed in the Latin maxim, expressio unius estexclusio alterius. In this case, by expressly listing the legislations to which section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 applies, the section excludes those not listed. If the legislative intendment or object of the section is that it should apply to all unlawful activities or unlawful activities under all legislations, it would not have limited its application only to the unlawful activity under the statutes listed therein. Put differently, by virtue of the clear words of the provisions of the section, an order of interim or final forfeiture of property cannot be made by a court under the Act unless the applicant has shown that the property is reasonably suspected to be proceeds of some unlawful activity under the Act, the Money Laundering Act, 2004; the Economic and Financial Crimes Commission (Establishment, Etc.) Act, 2004; or any other law enforceable under the Economic and Financial Crimes Commission (Establishment, Etc.) Act, 2004.
On construction of expropriatory statutes and need for strict compliance therewith:
Any law that restricts or encroaches on a person’s right to property is applied strictissimi juris. The conditions precedent for the deprivation of a person’s property stipulated by the statute must be strictly complied with or satisfied for such deprivation or denial of a person’s property to be valid. Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 is a statutory provision with expropriatory features because it provides for the taking away or the forfeiture of a person’s property and the vesting same in the Federal Government of Nigeria. So, section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 or like legislations must be interpreted and applied strictly.
On whether ownership or possession of property disproportionate to explainable legitimate income automatically warrants order of its interim forfeiture:
Per AGIM, J.S.C. at pages 106-107, paras. A-B:
“The part of the decision of the Court of Appeal that this court in Daudu v. FRN (2018)10 NWLR (Pt. 1626) 169, 183 … held that any person who is living above his own means of income owe society some explanation and that the burden lies on the accused to explain properties he acquired which are disproportionate to his known legitimate earnings has no relevance to the facts and issues in this case. This case has nothing to do with unexplained wealth. It is noteworthy that there is no legislation making ownership or possession of such wealth unlawful. It will help the fight against corruption if such a legislation is enacted. In any case, there is nothing in the Advance Fee Fraud Act or any Legislation in Nigeria that stipulates that an interim order can be made forfeiting the property of a person on the ground that he is living above his or her known means of income or that the property is disproportionate to his known legitimate earnings and requiring such person to explain its source or forfeit it to the state. In the absence of a legislation placing such an obligation on the owner of a property who has not been shown or reasonably suspected to have acquired the property as proceeds of an activity made unlawful or a crime by a statute, such a proposition by the Court of Appeal is not valid as it has no statutory foundation. In Daudu v. FRN (supra), the owner of the property was accused of trafficking in narcotic drugs or psychotropic substances, an activity made unlawful or a crime by legislation and consequentially the money found in his account was suspected to be proceeds from the said illicit traffic in narcotic drugs or psychotropic substances. The court in that precedent case applied the now repealed and deleted S. 19 (3) of the Money Laundering Act, 2004 which provided that:
‘In any trial for an offence under this Act, the fact that an accused person is in possession of pecuniary resources or property for which he cannot satisfactorily account and which is disproportionate to his known resources or income, or that he had at or about the time of the alleged offence obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, may be proved and may be taken into consideration by the Federal High Court as corroborating the testimony of any witness.’
It is glaring from the clear words of that repealed provision that it made such inexplicable wealth as corroborative of the testimony of a witness in an on-going criminal trial of a person for a money laundering offence. The current Money Laundering (Prohibition) Act 2011 does not have provisions similar to that of S. 19(3) of the 2004 Act. In the present case, the appellant is not accused of or being tried for the commission of any of the offences in the statutes listed in S.17 of the Advanced Fee Fraud Act. It is a civil forfeiture process pursuant to S. 17 of the Advanced Fee Fraud Act and the contractual transaction relied on to apply for the said forfeiture was not shown to be an activity that is in breach of or made unlawful by any of the statutes listed therein.”
On essence and purpose of civil forfeiture:
In general, there are two policy rationales for civil forfeiture. First, gains from unlawful activity ought not to accrue and accumulate in the hands of those who commit unlawful activity. Those individuals ought not to be accorded the rights and privileges normally attendant to civil property law. In cases of fraud and theft, the proceeds ought to be disgorged and distributed back to victims. Second, the State as a matter of policy wants to suppress the conditions that lead to unlawful activities. Profits from unlawful activities also represent capital for more unlawful activities, which can further cause harm to the society. Leaving property that facilitates unlawful activity in an individual’s hands creates a risk that he or she will continue to use that property to commit unlawful activity. The in rem provisions for civil forfeiture focus very precisely on these goals by dealing directly with a specific property that is traced, as proceed or instrument, of unlawful activity. At the core of civil forfeiture is public policy – the protection of public interest as against the interest of an offender.
On rationale for civil forfeiture:
The rule of forfeiture is an example of a wider principle that a person cannot benefit from his own unlawful activity as a principle of public policy, not a principle of justice to produce a fair result in all cases.
On nature of civil forfeiture laws:
Civil forfeiture laws do not create offences, nor do they prohibit any conduct or impose any penalty, fine or imprisonment on an individual and civil forfeiture proceedings have nothing to do with the identification, search, arrest, detention, charging, prosecution or conviction of any person, they are pure civil proceedings.
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