SUPREME COURT JUDGEMENT DELIVERED ON: 12TH MARCH, 2021
BACKGROUND FACTS:
The Respondent was arrested by the Appellant on the ground of suspicion of being in possession of money said to be proceeds of illegal activities under Section 17 of the Advance Fee Fraud and Other Related Offences Act, 2006 (the Fraud Act).
The Appellant sought for an interim order of forfeiture to the Federal Government of Nigeria (FGN) of the sum of Nine Billion, Eighty Million (N9.080B) equivalent of the sum of Forty Million United State Dollars (U$40,000,000) said to have been released by the Respondent in the course of investigation to the Appellant vide an Ex Parte application at the Federal High Court, Lagos. The Federal High Court granted the order for interim forfeiture and subsequently granted a final order of forfeiture of the said sum to the FGN after advertisement to the public to show cause why the money should not be forfeited to the FGN and upon hearing the parties on affidavit evidence.
Aggrieved with the order, the Respondent appealed to the Court of Appeal, Lagos. In its Judgment, the Court of Appeal set aside the order of the Federal High Court and allowed the appeal.
Dissatisfied with the judgment of the Court of Appeal, the Appellant lodged an appeal at the Supreme Court. The Appellant’s appeal at the Supreme Court was predicated on four (4) grounds as contained in its Amended Notice of Appeal and formulated two (2) issues for determination in its Amended Appellant’s Brief of Argument.
The Respondent on the other hand filed a Notice of Preliminary Objection to the Appeal alongside the Respondent’s Brief of Argument wherein it formulated a sole issue for determination. The Appellant did not file a Reply to the Preliminary Objection. Also, the Respondent was dissatisfied with a portion of the decision of the Court of Appeal hence filed a Notice of Cross Appeal. Briefs were also filed and exchanged on the Cross Appeal.
In the determination of the appeal, the Supreme Court first considered the Preliminary Objection of the Respondent challenging its jurisdiction by reason of Section 233 (2) of the 1999 Constitution (As Amended). The grouse of the Preliminary Objection was that the grounds contained in the Notice of Appeal filed by Appellant are grounds of facts or at best, mixed law and facts hence required the leave of Court pursuant to Section 233 (2) of the Constitution of Nigeria, 1999 (As Amended) and failure of which renders the appeal incompetent. The Respondent urged the Court to uphold the objection and strike out/dismiss the appeal.
The Supreme Court found that the Appellant is deemed to have conceded to the points argued in the Respondent’s Brief on the Preliminary Objection having failed to file a Reply Brief. Notwithstanding, the Court in its wisdom considered the Preliminary Objection on its merit and found merit in the objection of the Respondent in respect of grounds 1, 3 and 4 of the Amended Notice of Appeal which clearly contained facts or at best, mixed law and facts to require the prior leave of court as a condition precedent to be valid and competent by virtue of Section 233 (3) of the Constitution of Federal Republic of Nigeria, 1999 (As Amended).
The Court was left with Ground 2 of the Amended Notice of Appeal which formed the basis of its judgment in the appeal.
ISSUE (S) BEFORE THE COURT
After consideration of the Preliminary Objection, the remaining live issue arising from the surviving Ground 2 of the Amended Notice of Appeal for determination by the Supreme Court was whether the Court of Appeal has breached the Appellant’s Right to fair hearing in admitting and relying on the Respondent’s 1st, 2nd and 3rd Further Counter-Affidavits without giving the Appellant the opportunity to respond to the fresh evidence contained therein.
DECISION OF THE COURT
In the determination of the issue before it, the apex Court considered the allegation of denial of fair hearing by the Appellant and the submissions of the parties. The Court found at page 34 of the judgment thereof without hesitation that the allegation of denial of fair hearing by the Appellant against the Court of Appeal in admitting and relying on the Respondent’s Further Counter Affidavits in the determination of the appeal before it was grossly misconceived as it has no cognizable basis in law.
The Supreme Court also found that the evidence contained in the Further Counter Affidavits were not fresh/new evidence sought to be introduced by the Respondent, rather it was evidence to support the case the Respondent had presented in the counter affidavit he filed to show cause why the order for final forfeiture ought not to have been made.
Significantly, the Court considered and construed strictly the provision of Section 17 of the Advance Fee Fraud Act pursuant to which the Appellant made the application for the order of final forfeiture of the sum in question. The Court held that the basic element, essential and vital requirements for the application of the provision of Section 17 of Fraud Act are; (1) That the property or proceeds is/are of an unlawful activity under the Act and (2) That the property or proceeds in question is/are in the possession of the person against who the order of forfeiture was sought. The Court also pointed out that the requirement of the sum being found in possession of a person at the material time to the application for forfeiture, is a condition precedent for the making of a valid order for forfeiture by a High Court under Section 17 (1) and failure to meet and satisfy the condition is fatal to the application of the provisions of the Section. Consequently, from the facts on printed record before the Supreme Court, it found, agreed and endorsed the finding of the Court of Appeal that the Appellant was unable to show that the sum of Nine Billion, Eighty Million naira (N9.080B) equivalent of the sum of Forty Million United State Dollars (U$40,000,000) was at the material time of the application for forfeiture, in possession, either physically, actual or constructive of the Respondent. The Court dismissed the appeal for lacking in merit. The apex court did not determine who had possession of the Nine Billion, Eighty Million Naira equivalent of U$40 million. The question of who had possession was not an issue before the Supreme Court. The Court found and affirmed the finding of the Court of Appeal that the sum in question was not in possession of Mr. Dauda Lawal (Respondent) having regard to his further counter affidavits that showed he raised the sum from the bank and friends. That fact was never challenged and controverted by the Appellant.
The Court equally considered the reliefs sought in the cross appeal of the Respondent. It held that the cross appeal had been overtaken by the outcome of the main appeal, became spent and merely academic. The cross appeal was dismissed.
LEGAL OPINION
The case at hand presents a scenario where the apex Court as a Court of justice match up its duty of protection of the rights of litigants and shielding them from any unwarranted harassment by anti-graft agencies. Going by the literal interpretation of Section 17 of the Advanced Fee Fraud and Other Related Offences Act, 2006 vis-à-vis the evaluation of the documentary evidence placed before it in the instant case, it is submitted that the Judgment of the apex Court is rock solid and well-founded on that front. The Judgment affirms the duty of the court to construe strictly any provision of law that seeks to take away or encroach on propriety rights.
On the flip side, it is submitted that the decision of the Supreme Court may have open up a window for corrupt elements in the society to conveniently get away with proceeds of illegal activities on the pretext that the money/property is not in their possession. Worse still, in an application for forfeiture, this decision of the Supreme Court is a binding precedent going by the doctrine of stare decisis that will inure in benefit of any person, body corporate or financial institution where he can show that the order of forfeiture against the money/property suspected to be proceeds of illegal activities is not in his possession.
THE LEGAL IMPLICATION OF THE SUPREME COURT DECISION
- From the judicial pronouncement of the apex Court on the meaning of “to possess or be in possession” as well as the strict construction or fortissimo contra preferentes of the provision of Section 17 of the Advance Fee Fraud and Other Related Offences Act, 2006, the anti-graft agencies in an application for forfeiture of any money/property suspected to be proceeds of illegal activities, have a duty to show that such money/property is in possession of the suspect.
- The High Court; State, FCT or Federal in the exercise of its power to make an order of forfeiture of any claimed property or proceeds of an unlawful activity in possession of any person pursuant to Section 17 of the Advanced Fee Fraud and Other Related Offences Act, 2006 has to satisfy itself that the application for forfeiture fulfills the basic, essential and vital requirement for the application of the provision. A fortiori, not every application for forfeiture should be granted except it satisfies the requirement of Section 17.
- The decision reaffirmed the stance of the judex on allegation of denial of fair hearing by litigants and their Counsel. The Court will only come to the aid of the one who alleges a denial of fair hearing in the conduct of a particular proceeding in deserving cases. The allegation of denial of fair hearing cannot be used as a magic wand.