Background.

According to a report by Channels TV*, on Monday, 21st of October 2019, the Federal High Court, Lagos Division, ordered the interim forfeiture of two properties located at Ikoyi area of Lagos State belonging to the immediate past Senate President, Dr. Bukola Saraki, to be forfeited to the Federal Government of Nigeria.

The Order was said to have been made based on an ex parte application filed by the Ilorin Zonal Office of the Economic and Financial Crimes Commission (EFCC) wherein it was alleged that the properties temporarily forfeited to the Federal Government were acquired through proceeds of unlawful activities. Justice Mohammed Liman who made the Order also directed the EFCC to publish the Order in a national daily within fourteen days.

Power to make interim forfeiture order

The EFCC is empowered by law, that is, Section 29 of the Economic and Financial Crimes Commission (Establishment) Act, 2004 (EFCC Act) to apply to the court for an interim order of forfeiture of any property suspected to have been acquired through unlawful means. There are similar provisions in other statutes like the Advance Fee Fraud and other Fraud Related Offences Act.

Prior to approaching the court for interim forfeiture order, the EFCC is required to have commenced an investigation, identify the property and thereafter seize and seal the property. Typically, arrest and search is not a condition precedent to the standard procedure under Section 29 of the EFCC Act. In other words, the owner of property, being the suspect, need not even be arrested at this stage. See Senator Peter Nwaoboshi & Ors v. FRN (2018) LPELR-45107(CA).

The application is permitted to be made ex parte, meaning that the owner of the property in question need not be notified or served with the application. The court has the discretion and power to grant it, and make the interim order of forfeiture of the property in question where the court is satisfied that on the face of it, the case and evidence presented by the EFCC contain something worth looking at. The order is made to last pending the conclusion of investigation and consequent prosecution of the offences for which the owner of the property in question is charged.

Harsh right?

Really, it does sound harsh that a court of law can make such an order of interim forfeiture of property without hearing the victim of the order. Where then is the constitutional right to fair hearing, you may ask?

Relax! The order forfeiting the property in question to the Federal Government is a temporary order, hence the name – “interim” order of forfeiture. The essence of the interim forfeiture order is not to permanently deprive the property owner of his or her property or asset but to preserve the property from being dissipated. Put in another way, what the law aims to achieve is merely to preserve the property suspected to be proceeds of crime from being disposed of by the accused person (being the owner), either by sale or other means, thereby also rendering the final judgment of the Court nugatory in the event of a conviction or where the property owner fails to give satisfactory explanation.

More so, the Supreme Court has held that all interim forfeitures or freezing of accounts orders made pursuant to law for the purpose of preserving the named assets are not in violation of the constitutionally guaranteed right to fair hearing and right to own property. See Dame Patience Ibifaka Jonathan v. Federal Republic of Nigeria (2019) LPELR-46944(SC).

Thus, the property owner is actually not shut out in the real sense. (S)he will definitely be given the opportunity to be heard. Where reasonable explanation is furnished as to the source of the funds used to acquire the property in question, the order will be discharged and the property will be free from the grip of the law enforcement agents. In deserving cases, the property owner may be entitled to some form of compensation by way of damages for the embarrassment, harassment and trauma suffered in the process. Therefore, Dr. Saraki still has the opportunity to defend himself and his property.

It would be recalled that recently, Dr. Saraki was discharged and acquitted by the Supreme Court of several allegations bordering on corrupt practices leveled against him. This came on the backdrop of the fundamental flaws in the style adopted by the EFCC in prosecuting him. EFCC had failed to operate within their statutory bounds at the time. Sadly, those allegations, as heavy as they were, were never heard and determined on the merits. It was however one triumph of technicality that could not have been reasonably faulted.

We are left to see if the basis of this new action by the EFCC can be totally severed from the previous charges leveled against him, for which he had been discharged and acquitted. Otherwise, the case will probably not see the light of day.

Featured Image Credit: Thisday.

*Channels TV report.