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Case Title:

ALISON-MADUEKE

v.

EFCC

(2021) LPELR-56922(CA)

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ALISON-MADUEKE v. EFCC
(2021) LPELR-56922(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, November 26, 2021

CA/L/CV/1263/2019

Before Our Lordships

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Obande Festus Ogbuinya Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

DIEZIANI ALISON-MADUEKE APPELANT(S)

And

THE ECONOMIC & FINANCIAL CRIMES COMMISSION RESPONDENT(S)

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RATIO DECIDENDI

PUBLIC OFFICER - PUBLIC OFFICERS - Whether pieces of jewelry of a public officer are property to be declared in a declaration of assets form

"The appellant did not declare the pieces of jewellery at stake in her Declaration of Assets Form attached to the application as an Exhibit. Pieces of jewellery

being valuables are property vide the definition of 'asset' in Oxford Advanced Learner's Dictionary (New 9th Edition) page 78 and are expected to be

declared as property under Section 15 of the Code of Conduct Bureau and Tribunal Act CAP. C15 Laws of the Federation, 2004 which requires all properties,

assets and liabilities of a public officer to be declared in a declaration form before assuming office and after every four years if still in office and soon upon

cessation of office. Even the appellant treated the pieces of jewellery as property under Section 44(1) of the 1999 Constitution in the course of argument in

the instant case and cannot be seen to turn volte-face over the stance she had taken on the import of property in the present dispute. The natural

conclusion to draw, which I hereby draw, is that had the pieces of jewellery existed before the asset declaration form was filed by the appellant, the

appellant as a responsible citizen was expected to have declared the pieces of jewellery in the Declaration of Assets Form before assumption of office."

EVIDENCE - ADDUCED EVIDENCE - Whether the knowledge of facts discovered by an investigator in the course of investigation is reliable; effect

of failure to controvert same

"Indisputably, knowledge of facts discovered by the investigator of a case in the course of investigation is considered authentic and reliable; accordingly, the

estimated $40 Million value of the pieces of jewellery ostensibly derived from facts in the course of investigation of the case established on the balance of

probability the conservative or estimated value of the pieces of jewellery and without contrary material/information by the appellant on her own estimate of

the value of the pieces of jewellery or that the estimate was excessive, the Court below aright, in my modest opinion, treated the one-way estimate of the

value of the pieces of jewellery given by the respondent as establishing the value of the pieces of jewellery in question vide by analogy the Privy Council

case of Adel Boshali v. Allied Commercial Exporters Ltd. reported in Privy Council Judgments by Olisa Chukwura, SAN, page 862 at 865 where it was held

that in the absence of any contrary evidence, the only figure or sum that came from the other side of the dispute should be accepted. The ipse dixit of the

respondent that the pieces of jewellery were worth about $40 million therefore afforded prima facie evidence of the value of the pieces of jewellery

contingent upon the appellant giving a less value or figure at the stage the appellant would show cause why a final order of forfeiture of the pieces of

jewellery should not be made against her and in favour of the Federal Government of Nigeria. The entire emoluments of the appellant as broken down in her

letter of appointment attached to the application for her cumulative record of public service for the period in question clearly trailed far behind the $40

million estimated value of the pieces of jewellery. It was based on these parameters that the Court below rightly, in my opinion, issued or granted the order

of interim forfeiture of the pieces of jewellery."

CRIMINAL LAW AND PROCEDURE - SEIZURE, RESTITUTION, FORFEITURE AND DISPOSITION OF PROPERTY - Position of the law as regards an order of

forfeiture

"All the arguments canvassed (supra) by the appellant impugning the order of interim forfeiture of the pieces of jewellery fly in the face of the authoritative

decision of the Supreme Court in the case of Dame Patience Jonathan v. F.R.N. (2019) 10 NWLR (pt.1681) 533, where the Apex Court held inter alia that

Section 17 of the Advance Fee Fraud and Other Related Offences Act, 2006 provides for the power to make an order of forfeiture without conviction for an

offence; and that an order of forfeiture under the section shall not be based on the conviction for an offence under the Act or any other law. The Apex Court

further held that an application under Section 17(1) shall first be made by motion ex parte for interim forfeiture order of the property concerned and the

giving of the requisite notice or publication as required in Section 17(2); and that at the expiration of fourteen (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 in Section 17(2) and (3), an application shall be

made by a motion on notice for the final forfeiture of the property concerned to the Federal Government of Nigeria. The Supreme Court went on to hold

that in according the words in Section 17 of the Advance Fee Fraud and Other Related Offences Act, 2006 their simple grammatical meaning, it becomes

evident that, though the High Court is empowered to grant upon an ex parte application, an order of interim forfeiture in respect of money or property

suspected to be proceeds of unlawful activity, it is a condition precedent to the order being made that the person against whom the order is made be

simultaneously given notice of the interim order of forfeiture and a further order commanding him to show cause within the time specified by the Court

why the property should not be forfeited to the Federal Government of Nigeria. The Supreme Court added that a final order of forfeiture of the property is

only possible if the owner of the property or a person who has interest in or claims to the property has failed to show cause within the time ordered by the

Court why the interim order of forfeiture to the Federal Government of Nigeria should not be made final; and that it tallies with reason that the interim order

of forfeiture is indeed transient and becomes effective only when it has been made final at which point in time an owner is effectually expropriated. The

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Supreme Court continued that by the clear words of Section 17 of the Advance Fee Fraud and Other Related Offences Act, final forfeiture is ordered only

after the respondent is heard or, having been notified of the interim order of forfeiture, neglected or failed to show cause, within the time allowed, why the

sums should not be finally forfeited to the Federal Government of Nigeria. The Supreme Court added that Section 17 of the Advance Fee Fraud and Other

Related Offences Act, 2006 has inbuilt mechanism for the hearing of parties in that it is prescribed in Section 17(3) of the Act that the Economic and

Financial Crimes Commission (the respondent in this appeal) should, after identifying the abandoned properties or properties reasonably suspected to be

proceeds of crime, first of all apply ex parte to the High Court for an interim order of forfeiture so as to preserve the properties from being dissipated. The

Supreme Court further held that Section 17 of the AFF Act also imposes a duty on the Court granting the interim forfeiture order to direct the applicant to

publish the order and notify anyone who may be affected by the order so that the affected party may come to the Court to show cause why the final of

forfeiture should not be made. If at the end of the hearing the application, the trial Court finds that it ought not to grant the interim forfeiture order, the

order is liable to be discharged. The Supreme Court also held in the said case that the Advance Fee Fraud and Other Fraud Related Offences Act was

enacted in line with the convention wherein non-conviction based forfeiture has been legalised by Section 17 of the Act and is not limited to Nigeria alone

as it follows the same pattern with Part 5 of the Proceeds of Crime Act, 2002 of the United Kingdom; and that it is not the procedure that matters but the

substance of the application and what it is intended to achieve; in that not only that, the proviso to Section 36(5) of Constitution of the Federal Republic of

Nigeria, 1999 recognises the validity of any law which imposes the burden of proving particular facts on a particular person. The Supreme Court of Nigeria

relied on the Supreme Court of Ireland case of Gilligan v. Criminal Assets Bureau (2011) 1 ESC 82 to hold in the case of Jonathan v. FRN (supra) that the

authorities lend considerable weight to the view that in rem proceedings for the forfeiture of property, even when accompanied by a parallel procedure for

the prosecution of criminal offences arising out of the same events are civil in nature could be taken concurrently. It was also held by the Supreme Court in

Jonathan v. FRN(supra) at 570-572; that there was no need to prove any crime in forfeiture of property under Section 17 of the AFF Act as civil forfeiture is a

unique remedy which rests on the legal fiction the property, not the owner is the target therefore it does not require a conviction or even a criminal charge

against the owner as it is not a punishment nor is it for criminal purposes. See also the Supreme Court case of La Wari Furniture & Bath Ltd v. F.R.N. (2019) 9

NWLR (Pt. 1677) 252 where it was held inter alia that forfeiture proceedings under Section 17 of the AFF Act is constitutional and accords with the principle

of fair hearing. Drawing support and force from the above decisions of the Supreme Court, the Court of Appeal held in the case of Joy Obiageli Oti v. EFCC

and Anor. (2020) 14 NWLR (pt.1743) 48, that civil forfeiture proceedings are intended to cause the forfeiture of proceeds of unlawful activity or act and is

targeted on the property, not the person and is thus in rem proceedings, not in personam proceedings. I think as sufficiently expressed by Kirby P., in the

Australian case of Troja v. Troja (1994) 33 NSWLR 269 at 278 from New South Wales and endorsed by Philips L. J., in the English case of Dunbar v. Plant

(1997) 4 All E.R. 289 at 304 cited with approval by Lord Goff of Chieveley and Jones Q.C. in their authoritative book - The Law of Restitution (Seventh

Edition) page 830 paragraph 38-002 - the rule of forfeiture is an example of a wider principle that a person cannot benefit from property afflicted with his

own unlawful activity as a principle of public policy, not a principle of justice to produce a fair result in all cases. 'Prima facie' means at first sight or on the

first appearance or on the face of it or so far as it can be judged from the first disclosure or at a glance vide Felimon Ent. Ltd. v. Chairman EFCC (2018) 7

NWLR (Pt.1617) 56 at 69, so for an order of interim forfeiture of property to be made, the 1st respondent had to satisfactorily show only prima facie evidence

as defined (supra) that the property was likely proceeds of unlawful activity or crime and may ultimately be liable to forfeiture. By considering and granting

the ex parte application for interim forfeiture, the Court below was taken to have agreed with the respondent that it had made a prima facie case for

forfeiture of the pieces of jewellery and that the respondent had discharged the burden of proof under Section 17(1) of the AFF Act. The burden then shifted

to the appellant to show cause why an order of final forfeiture of the pieces of jewellery should not be made against her under Section 17(2) of the AFF Act.

The burden of proof placed on the appellant to show cause is on the balance of probability as the fact of how she came into possession of the pieces of

jewellery (supra) is specially within her knowledge thus placing the burden of proving that particular fact upon the appellant vide Section 140 of the

Evidence Act read with Section 36(5) of the 1999 Constitution to the effect that nothing in Section 36 dealing with fair hearing shall invalidate any law by

reason only that the law imposes upon any such person the burden of proving particular facts. Section 17(3) and (4) of the AFF Act empowers the

application to be made ex parte which is the form of commencement of the proceedings stipulated by the AFF Act 2006 and being the particular mode

prescribed by statute the respondent was entitled to commence the proceedings by an ex parte application. Section 17(4) thereof lays down the step to

take after the ex parte order of interim forfeiture is made for the making of the final order of forfeiture. Section 17(6) of the AFF Act, also, emphasizes that an

order of forfeiture under this Section shall not necessarily be based on a conviction for an offence under the Act or any other law."

CRIMINAL LAW AND PROCEDURE - SEIZURE, RESTITUTION, FORFEITURE AND DISPOSITION OF PROPERTY - Instance where an order of forfeiture will be

held to have been rightly made

"In showing cause, the appellant caused to be deposed in one breath that the pieces of jewellery found in her possession, the subject matter of the

proceedings, were gifts made to her while in office as Minister of Petroleum Resources, and, yet in another breadth that the pieces of jewellery comprised

gifts to her spanning near fifty (50) years. There appears to be internal conflict between the two versions as to amount to the deponent speaking through

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both sides of the mouth, so to say. Be that as it may, the particulars of those that allegedly made the gifts of the pieces of jewellery to the appellant were

not disclosed. It was necessary to disclose their identities, not to have left it at large or in nebulous and anonymous shape as the appellant did in the

present case. Because personal gifts from personal friends and relatives to a public officer while in public office that are customary in nature may be

tolerated, but not otherwise. For Section 10 of the Code of Conduct Bureau and Tribunal Act CAP. C15 Laws of the Federation, 2004, states that - "Gifts or

benefits to kind (1) A public officer shall not ask for or accept any property or benefits of any kind for himself or any other person on account of anything

done or omitted to be done by him in the discharge of his duties. (2) For the purpose of Subsection (1) of this Section, the receipt by a public officer of any

gifts or benefits from commercial firms, business enterprises or persons who have contracts with the Government, shall be presumed to have been

received in contravention of Subsection (1) of this Section, unless the contrary is proved. (3) A public officer shall only accept personal gifts or benefits

from relatives or personal friends to such extent and on such occasions as are recognized by custom. Provided that any gift or benefit to a public officer on

any public or ceremonial occasion shall be treated as gifts or benefits to the appropriate institution represented by the public officer, and accordingly, the

mere acceptance or receipt of any such gift or benefit shall not be treated as a contravention of this provision". The appellant did not therefore show cause

on the balance of probability that the about $40 million gargantuan and unusual humongous accumulation of wealth in the pieces of jewellery in issue were

personal gifts or benefits from relatives or personal friends to such extent and on such occasions to make the pieces of jewellery without blemish and/or

acquired legitimately or lawfully. In saying so, I believe what is unlawful activity is simply an activity that is not lawful or conduct that is not authorized by law

or illegal conduct or conduct involving moral turpitude (Black's Law Dictionary, Eighth Edition page 1574). At the risk of repetition, Section 44(2) (a) of the

1999 Constitution stipulates that nothing in Subsection(1) thereof with respect to the sanctity and ownership of property shall be construed as affecting

any general law relating to forfeitures for breach of any law whether under civil process or after conviction for an offence. The phrase 'general law' denotes

law that is neither local nor confined in application to particular persons but applies to all persons or place of a specified class throughout the jurisdiction

(Black's Law Dictionary supra page 900). Accordingly, the AFF Act of 2006 qualifies as general law and the unlawful activity here which hinged on colossal

accumulation of wealth in pieces of jewellery that amounted to about $40 Million by a public officer such as the appellant at the material time while in

public service impinged on breach of the relevant provisions of the Code of Conduct and Tribunal Act (supra); a law enacted by the National Assembly of

Nigeria. In addition, when it was the turn of the appellant to show cause against final forfeiture of the pieces of jewellery, it was open to the appellant who

was then under the burden to establish that the pieces of jewellery were excessively valued by the respondent to depose or cause to be deposed a

contrary figure or value in remonstration to the estimate made by the respondent. Not having done so, the estimated value of the pieces of jewellery given

by the respondent at about $40 Million for the umpteen time remained unassailable, in my modest view. So, the version of the respondent that the pieces

of jewellery were bought by the appellant while in public service as Minister of Petroleum Resources prima facie evidenced by the written statement of one

of the jewellery traders to the EFCC (respondent) that she sold pieces of jewellery to the appellant while the appellant was in public office as shown by

some of the invoices attached to the affidavit in support of the application by the respondent remained unmoved or not displaced. Accordingly, the Court

below was right in the decision it reached when it ordered final forfeiture of the about $40 million worth of pieces of jewellery found in possession of the

appellant who did not even suggest or give contrary value or figure to the about $40 million estimate given by the respondent to indicate the pieces of

jewellery were within her legitimate emoluments while in public service as Minister of Petroleum Resources of the Federal Republic of Nigeria."

JUDGEMENT SUMMARY

INTRODUCTION:
This appeal borders on order of forfeiture.

FACTS:
This appeal is against the judgment of the Federal High Court sitting in Lagos delivered by Oweibo, J.

The Respondent had, through its operatives, accessed the residence of the Appellant in Abuja where they recovered pieces of jewellery worth about $40 Million, upon

which the Respondent brought an ex parte application at the trial Court for interim forfeiture of the pieces of jewellery. The Court granted the application and directed

service of the enrolled order on the Appellant to show cause why the pieces of jewellery should not be forfeited to the Federal Government of Nigeria.

The ex parte application was granted based on affidavit evidence containing the source of income of the Appellant while in public service as Minister of Petroleum

Resources and the declaration of assets form deposed to by the Appellant before she assumed office as Minister of Petroleum Resources, which prima facie indicated

the value of the pieces of jewellery was far above the legitimate income of the Appellant while in public service at the material time, which afforded the Respondent,

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reasonable satisfaction that the pieces of jewellery were proceeds of unlawful activity, upon which the trial Court agreed with the Respondent and granted the order of

interim forfeiture of the pieces of jewellery.

In the bid to show cause why the pieces of jewellery should not be finally forfeited to the Federal Government of Nigeria, the Appellant maintained that the pieces of

jewellery constituted gifts to her while serving as Minister of Petroleum Resources of the Federal Government of Nigeria, on the one hand; and, on the other hand, that

the pieces of jewellery were genuinely acquired and received as gifts for a period spanning nearly 50 years before the incident. The Appellant also filed an application

for an order to set aside the interim order of forfeiture of pieces of jewellery estimated to worth $40 Million

The trial Court not satisfied with the cause shown by the Appellant, refused to set aside the interim order of forfeiture and subsequently, ordered final forfeiture of the

pieces of jewellery to Federal Government of Nigeria. Dissatisfied, the Appellant lodged an appeal at the Court of Appeal.

ISSUES:
The Court of Appeal determined the merit of the appeal.

DECISION/HELD:
On the whole, the appeal was dismissed and accordingly, the ruling of the Federal High Court was affirmed.

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from a decision of the Federal High Court sitting in Lagos (the Court below)
whereby it refused to set aside interim order of forfeiture of pieces of jewellery estimated to worth $40 Million and entered an order of final forfeiture of pieces of

jewellery said to have been found in possession of the appellant, [Link] Kogbeni Alison-Madueke, [Commander of the Niger (CON)], allegedly acquired by her

unlawful activity.

Put in condensed form, the respondent had, through its operatives, accessed the residence of the appellant in Abuja where they recovered pieces of jewellery worth

about $40 Million; upon which the respondent brought an ex parte application at the Court below for interim forfeiture of the pieces of jewellery. The Court below

granted the application and directed service of the enrolled order on the appellant to show cause why the pieces of jewellery should not be forfeited to the Federal
Government of Nigeria.

​The ex parte application was granted based on affidavit evidence containing the source of income of the appellant while in public service as

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Minister of Petroleum Resources and the declaration of assets form deposed to by the appellant before she assumed office as Minister of Petroleum Resources, which

prima facie indicated the value of the pieces of jewellery was far above the legitimate income of the appellant while in public service at the material time, which

afforded the respondent, reasonable satisfaction that the pieces of jewellery were proceeds of unlawful activity, upon which the Court below agreed with the

respondent and granted the order of interim forfeiture of the pieces of jewellery.

​In the bid to show cause why the pieces of jewellery should not be finally forfeited to the Federal Government of Nigeria, the appellant maintained that the pieces of

jewellery constituted gifts to her while serving as Minister of Petroleum Resources of the Federal Government of Nigeria, on the one hand; and, on the other hand, that

the pieces of jewellery were genuinely acquired and received as gifts for a period spanning nearly 50 years before the incident. The Court below was not satisfied with

the cause shown by the appellant and ordered final forfeiture of the pieces of jewellery to Federal

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Government of Nigeria.

Utterly dissatisfied with the decision of the Court below refusing to set aside the interim order of forfeiture of the pieces of jewellery and the entry of an order of final

forfeiture of the pieces of jewellery to the Federal Government of Nigeria, the appellant filed a notice of appeal with six (6) grounds contained in pages 578-582 of the

record of appeal (the record).

The appellant’s complaints in the brief of argument filed on 20.02.2020, but deemed as properly filed on 01.03.2021, were that there being no substantive action

pending in Court against the appellant to link the ex parte order of interim forfeiture of the said pieces of jewellery and the allegations upon which the ex parte

application was premised being criminal in nature, the Court below was wrong to order final forfeiture of the pieces of jewellery by the appellant in favour of the Federal

Government of Nigeria, when the appellant was not in breach of any law and when by Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria 1999

(1999 Constitution) the appellant has unfettered and inviolable right to ownership of property which was

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infringed by the respondent by not following the laid down procedure for enforcement of the relevant provisions of the EFCC Act, placing further reliance on the cases

of Chidolue v. EFCC (2012) 5 NWLR (Pt. 1292) 160 at 179; Akingbehin v. Thompson (2008) 6 NWLR (Pt. 1083) 270 at 279; Onwuka v. Ononuju (2009) 11 NWLR (Pt.

1151) 174 at 184-189 read with Sections 28, 29 and 30 of the EFCC Act and the definition of the phrase ‘Enforcement’ as the act or process of compelling compliance

with a law, mandate, command, decree or agreement vide Black’s Law Dictionary, Tenth Edition.

The appellant further argued in the brief that the pieces of jewellery were not professionally valued by a jeweller or gemmologist, so the value of $40 Million placed on

them by the respondent was not supported by any other record; and that the maker of Exhibit 06, statement by one Bukola Oyewunmi to the EFCC, was not

substantiated by the alleged maker of the statement, nor was the name “Aunty D” on the invoices traced to the appellant, showing the respondent did not make a

prima facie case for the entry of an order of interim forfeiture of the pieces of

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jewellery made by the Court below.

The appellant reiterated in the brief that it was unconstitutional to order her to show cause why the pieces of jewellery should not be forfeited to the Federal

Government of Nigeria when there was no substantive case pending against her to hoist the forfeiture proceedings which are in nature merely collateral; consequently,

the appellant contended that she was denied fair hearing by the Court below placing reliance on the cases ofIka Local Government Area v. Mba (2007) 12 NWLR

(Pt.1049) 676; Duru & Anr. v. Nwosu (1989) LPELR-968(SC); Effiom v. State (2014) LPELR-22646(CA); Kotoye v. C. B.N. (1989) 1 NWLR (Pt.98) 419 at 442; Nwaigwe v.

F.B.N. (2009) 16 NWLR (Pt. 1166) 173 at 201; E.F.C.C. v. Fayose & Anr. (unreported Suit No. CA/Ek/8/2017) decided on 20.06.2016; and that, in the absence of a trial,

and conviction, it will be unconstitutional, if not practically impossible, for a Court to be satisfied that the property forms the “proceeds of crime”, or proceeds of
“unlawful activity”.

​The appellant argued that the Court below would have reached a different conclusion in favour of the

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appellant had it considered the counter affidavit of Mr. Akujobi, litigation assistant in the law firm of appellant’s senior counsel, which was wrongly jettisoned by the

Court below, therefore the Court should look at the affidavit in question and reach a conclusion favourable to the appellant placing reliance on the cases ofEzeudu v.

John (2012) 7 NWLR (pt.1298) 1 at 15, Akibu v. Opaleye (1974) 11 S.C. 189, Udeze v. Chidebe (1990) 1 NWLR (pt.125) 141 at 162.

It was on account of these submissions that the appellant urged that the appeal be allowed and the decision of the Court below set aside and it be substitute therefore

an order of injunction mandating the retention in custody and preventing the dissipation by any means by the respondent or any of its agents the property, the subject

matter of the aforesaid order of final forfeiture, pending the institution of a charge against the appellant.

​The respondent’s brief filed on 19.03.2021, relied on the cases ofGogitidze & Ors. v. Georgie ECHR (2015), Butter v. The United Kingdom (DEC) No.41661/98 delivered

on 27.06.2002, Arcuri and Ors. v. Italy (DEC) No.52024/99, ECHR 2001-IV,

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Simon Prophet v. National Director of Public Prosecution CCT 56/05 (South Africa), United States v. Ursery (95-345-518 U.S 267 (1996), Bennis v. Michigan (94-

8729) 517 U.S. 1163 (1996), Gilligan v. Criminal Assets Bureau (2001) IESC 82, Jonathan v. FRN (2018) LPELR–43505 (CA) at page 35, paragraph C and LA-WARI

Furniture & Baths Ltd. v. FRN & Anor. (2018) LPELR–43507 CA, Jonathan v. FRN (2019) LPELR–46944 (SC) pp.50-59, Ogungbeje v. EFCC (2018) LPELR–45317 CA;
Melrose General Services Limited v. EFCC (2019) LPELR–47673 CA, Joy ObiageliOti v. EFCC & Anor. unreported Judgment of the Court delivered in Appeal

Number CA/L/1555C/2018 on the 26th of June, 2020, Air Marshal Jacob Bolaji Adigun v. EFCC and 2 Othersunreported decision of the Court in Appeal Number

CA/LAG/CR/508/2019, to contend that the interim order of forfeiture and the final order of forfeiture of the pieces of jewellery made by the Court below did not violate

the appellant’s right to own property as well as the appellant’s right to fair hearing and were thus rightly made pursuant to Section 17 of the Advance Fee Fraud (AFF)

and Related Offences Act, 2006

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and same should not be disturbed.

The respondent commended the findings of the Court below contained in pages 844–857 of the record to contend that the said findings which were based on the

documentary evidence before the Court below justified the order of final forfeiture at the Court below according to all legal rules formulated to ensure that justice is

done to the parties vide Section 36 of the 1999 Constitution read with the cases of Bamaiyi v. State (2001) 8 NWLR (pt.715) 270 at 284, Ntukidem v. Oko (1986) 5

NWLR (pt.45) 909, Uguru v. State (2002) 2 NWLR (pt.771) 90 at 105, Audu v. FRN (2013) LPELR–19897 (SC) pp.13-14, Gbadeyan v. Unilorin (2014) LPELR-24307 (CA)

pages 29-30 paragraphs F-D and Davies & Anor. v. Governor of Ekiti State & Ors. (2018).

​It was then argued that having made prima facie case that the value of the pieces of jewellery was far above the legitimate income of the appellant, the onus shifted to

the appellant to explain how she came about ownership or possession of the pieces of jewellery which the appellant failed to satisfactorily explain, therefore the Court

below was right to make the

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order of final forfeiture against the appellant; upon which the respondent urged that the appeal should be dismissed and the decision of the Court below upheld.

The appellant’s reply brief was filed on 19.09.2021, but deemed as properly filed on 18.11.21, in which the appellant contended in repetition that Section 17 of the AFFAct

2006 is unconstitutional and that since the respondent did not address the vital issues raised and argued in the appellant’s brief, the respondent should be taken to

have conceded the points urged by the appellant vide the case ofFederal Ministry of Commerce and Tourism v. Eze (2006) 2 NWLR (pt.964) 221 at 241.

The appellant also contended in the reply brief that the Court below was wrong to hold in its judgment in pages 575–576 of the record that in the face of an interim

order to forfeit, a respondent must file an affidavit to show cause, instead of a motion to set aside as the procedure is not provided for under Section 17 of the AFF Act;

and that as the Court below did not consider the fact that an authorised jeweller did not give the value of the pieces of jewellery, the yardstick for measuring

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whether the forfeited items were within the means of the appellant was not established vide the cases ofNwankwo v. Yar’Adua (2010) All FWLR (pt.534) 1 at 51 paras.

C-D, Ofem v. Presbyterian Church of Nigeria (2012) All FWLR (pt.647) 801 page 812, State v. Ilori (1983) 1 SCNJ 94, Amadi v. NNPC (2000) FWLR (pt.9) 1527, Irole v.
Uka (2002) 14 NWLR (pt.786) 195 At 225, Tar & Ors. v. Ministry of Commerce & Industries & Ors. (2018) LPELR–44216 (CA), Ayinde Adeyemo v. Okunola Arokopo

(1988) SCNJ 1 at 15, and Section 167 of the Evidence Act.

It was further argued in the reply brief that had the Court below taken judicial notice of the fact that the search was conducted when the appellant ceased to be
Minister and had earlier worked in top oil companies and therefore by virtue of that, could afford the said pieces of jewellery, the Court below would not have issued the

order of final forfeiture of the piece of jewellery, upon which the appellant advocated for the appeal to be allowed and the decision of the Court below set aside.

​I think it is in the interest of justice to consider the counter affidavit of the appellant, which

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10

substantially flows with the relevant provisions of the Evidence Act 2011, in determining the appeal as the deponent, a Mr. Akujobi, had deposed in paragraphs 1 and 2
thereof contained in page 489 of the record that as litigation assistant in the law firm of the learned Senior Counsel for the appellant and in that capacity he was

conversant with the facts of the case and circumstances necessitating the application and had the consent of the appellant’s learned senior counsel to depose to the
affidavit on behalf of the appellant.

The pieces of jewellery affected or caught in the web of the ex parte order of interim forfeiture are tabulated in pages 241–242 of the record as follows –

S/N DESCRIPTION QUANTITY

1 EXPENSIVE BANGLES 419

2 EXPENSIVE RINGS 315

3 EXPENSIVE EARINGS 304

4 EXPENSIVE NECKLACE 267

5 EXPENSIVE WRISTWATCHES 189

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6 EXPENSIVE NECKLACE AND EARRING 174

7 EXPENSIVE BRACELET 78
8 EXPENSIVE BROOCH 77

9 EXPENSIVE PENDANTS. 74
10 EXPENSIVE NECKLACE 48

11 EXPENSIVE NECKLACE, BRACELET, EARRING AND RING 44

12 EXPENSIVE NECKLACE, EARRING AND RING 32

13 EXPENSIVE

11

PENDANTS AND EARRINGS 30

14 EXPENSIVE NECKLACE AND BRACELETS 18

15 EXPENSIVE EARRINGS AND RINGS 15

16 EXPENSIVE EARRINGS, RINGS AND BRACELET 12
17 EXPENSIVE CUFFLINKS 11

18 EXPENSIVE PENDANTS, EARRINGS AND RINGS 6

19 EXPENSIVE SINGLE EARRINGS 5

20 EXPENSIVE BRACELETS AND EARRINGS 5

21 EXPENSIVE NECKLACE AND SINGLE EARRINGS 3

22 EXPENSIVE NECKLACE AND RING 3

23 EXPENSIVE TRAAL CLOCKS 3

24 EXPENSIVE BROOCH AND CUFFLINKS 3

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25 EXPENSIVE PENDANTS AND RINGS 2

26 EXPENSIVE BRACELET EARRING AND RING 1

27 EXPENSIVE BANGLE AND EARRING 1

28 EXPENSIVE NECKLACE, RING AND BRACELET 1

29 EXPENSIVE BANGLE, RING AND BROOCH 1

30 EXPENSIVE NECKLACE EARRINGS AND BRACELETS 1

31 EXPENSIVE BANGLE AND RING 1

32 EXPENSIVE BROOCH AND EARRING 1

33 NECKLACE AND 2 PAIRS OF EARRINGS 3

34 CUSTOMISED GOLD IPHONE 1

​Both the declaration of assets of the appellant before she assumed office as Minister of Petroleum Resources and her letter of appointment that catalogued her
emoluments were attached as Exhibits to the application. The statement of one of the potential witnesses to the

12

respondent and invoices showing the witness sold some pieces of jewellery to the appellant in dollars during her tenure in office as Minister of Petroleum Resources

when she went by the acronym ‘Aunty D’ in the transaction which the witness statement explained referred to the appellant were some of the materials placed before
the Court below for the ex parte application for interim forfeiture of the pieces of jewellery in issue. Being a witness statement in civil dispute, such as the present one,

substantiation or formal proof of it as urged by the appellant in the course of her written case may be dispensed with as the statement was part of affidavit evidence
and was on that account admissible and reliable.

The appellant did not declare the pieces of jewellery at stake in her Declaration of Assets Form attached to the application as an Exhibit. Pieces of jewellery being

valuables are property vide the definition of ‘asset’ in Oxford Advanced Learner’s Dictionary (New 9th Edition) page 78 and are expected to be declared as property
under Section 15 of the Code of Conduct Bureau and Tribunal Act CAP. C15 Laws of the Federation, 2004

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which requires all properties, assets and liabilities of a public officer to be declared in a declaration form before assuming office and after every four years if still in
office and soon upon cessation of office. Even the appellant treated the pieces of jewellery as property under Section 44(1) of the 1999 Constitution in the course of

argument in the instant case and cannot be seen to turn volte-face over the stance she had taken on the import of property in the present dispute.
The natural conclusion to draw, which I hereby draw, is that had the pieces of jewellery existed before the asset declaration form was filed by the appellant, the

appellant as a responsible citizen was expected to have declared the pieces of jewellery in the Declaration of Assets Form before assumption of office.

​Both paragraph 3 of the affidavit in support of the motion ex parte for interim forfeiture contained in page 9 of the record and paragraph 3 of the affidavit in support of
the motion for final forfeiture of the pieces of jewellery contained in page 278 of the record deposed, respectively, that it was by virtue of the position of the deponents

as

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investigators of the matter that they were well conversant with the facts of the case, having derived their knowledge of the same in the course of investigation of the
case.

Indisputably, knowledge of facts discovered by the investigator of a case in the course of investigation is considered authentic and reliable; accordingly, the estimated
$40 Million value of the pieces of jewellery ostensibly derived from facts in the course of investigation of the case established on the balance of probability the

conservative or estimated value of the pieces of jewellery and without contrary material/information by the appellant on her own estimate of the value of the pieces of
jewellery or that the estimate was excessive, the Court below aright, in my modest opinion, treated the one-way estimate of the value of the pieces of jewellery given

by the respondent as establishing the value of the pieces of jewellery in question vide by analogy the Privy Council case of Adel Boshali v. Allied Commercial Exporters
Ltd. reported in Privy Council Judgments by Olisa Chukwura, SAN, page 862 at 865 where it was held that in the absence of any contrary evidence, the only figure or

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sum that came from the other side of the dispute should be accepted.

The ipse dixit of the respondent that the pieces of jewellery were worth about $40 million therefore afforded prima facie evidence of the value of the pieces of
jewellery contingent upon the appellant giving a less value or figure at the stage the appellant would show cause why a final order of forfeiture of the pieces of jewellery

should not be made against her and in favour of the Federal Government of Nigeria.
The entire emoluments of the appellant as broken down in her letter of appointment attached to the application for her cumulative record of public service for the

period in question clearly trailed far behind the $40 million estimated value of the pieces of jewellery. It was based on these parameters that the Court below rightly, in
my opinion, issued or granted the order of interim forfeiture of the pieces of jewellery.

All the arguments canvassed (supra) by the appellant impugning the order of interim forfeiture of the pieces of jewellery fly in the face of the authoritative decision of
the Supreme Court in the case of Dame Patience Jonathan v. F.R.N. (2019) 10 NWLR

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(pt.1681) 533, where the Apex Court held inter alia that Section 17 of the Advance Fee Fraud and Other Related Offences Act, 2006 provides for the power to make an
order of forfeiture without conviction for an offence; and that an order of forfeiture under the section shall not be based on the conviction for an offence under the Act

or any other law.

The Apex Court further held that an application under Section 17(1) shall first be made by motion ex parte for interim forfeiture order of the property concerned and the

giving of the requisite notice or publication as required in Section 17(2); and that at the expiration of fourteen (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 in Section 17(2) and (3), an application shall be made by a motion on

notice for the final forfeiture of the property concerned to the Federal Government of Nigeria.
The Supreme Court went on to hold that in according the words in Section 17 of the Advance Fee Fraud and Other Related Offences Act, 2006 their simple grammatical

meaning, it becomes evident that, though the High

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Court is empowered to grant upon an ex parte application, an order of interim forfeiture in respect of money or property suspected to be proceeds of unlawful activity,
it is a condition precedent to the order being made that the person against whom the order is made be simultaneously given notice of the interim order of forfeiture
and a further order commanding him to show cause within the time specified by the Court why the property should not be forfeited to the Federal Government of

Nigeria.
The Supreme Court added that a final order of forfeiture of the property is only possible if the owner of the property or a person who has interest in or claims to the

property has failed to show cause within the time ordered by the Court why the interim order of forfeiture to the Federal Government of Nigeria should not be made
final; and that it tallies with reason that the interim order of forfeiture is indeed transient and becomes effective only when it has been made final at which point in time

an owner is effectually expropriated.

The Supreme Court continued that by the clear words of Section 17 of the Advance Fee Fraud and Other Related Offences Act,

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final forfeiture is ordered only after the respondent is heard or, having been notified of the interim order of forfeiture, neglected or failed to show cause, within the time

allowed, why the sums should not be finally forfeited to the Federal Government of Nigeria.
The Supreme Court added that Section 17 of the Advance Fee Fraud and Other Related Offences Act, 2006 has inbuilt mechanism for the hearing of parties in that it is

prescribed in Section 17(3) of the Act that the Economic and Financial Crimes Commission (the respondent in this appeal) should, after identifying the abandoned
properties or properties reasonably suspected to be proceeds of crime, first of all apply ex parte to the High Court for an interim order of forfeiture so as to preserve

the properties from being dissipated.

The Supreme Court further held that Section 17 of the AFF Act also imposes a duty on the Court granting the interim forfeiture order to direct the applicant to publish
the order and notify anyone who may be affected by the order so that the affected party may come to the Court to show cause why the final of forfeiture should not be

made. If at the end of the

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hearing the application, the trial Court finds that it ought not to grant the interim forfeiture order, the order is liable to be discharged.
The Supreme Court also held in the said case that the Advance Fee Fraud and Other Fraud Related Offences Act was enacted in line with the convention wherein non-

conviction based forfeiture has been legalised by Section 17 of the Act and is not limited to Nigeria alone as it follows the same pattern with Part 5 of the Proceeds of
Crime Act, 2002 of the United Kingdom; and that it is not the procedure that matters but the substance of the application and what it is intended to achieve; in that not

only that, the proviso to Section 36(5) of Constitution of the Federal Republic of Nigeria, 1999 recognises the validity of any law which imposes the burden of proving
particular facts on a particular person.

The Supreme Court of Nigeria relied on the Supreme Court of Ireland case of Gilligan v. Criminal Assets Bureau (2011) 1 ESC 82 to hold in the case of Jonathan v. FRN
(supra) that the authorities lend considerable weight to the view that in rem proceedings for the forfeiture of property, even when accompanied by a

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parallel procedure for the prosecution of criminal offences arising out of the same events are civil in nature could be taken concurrently.
It was also held by the Supreme Court in Jonathan v. FRN(supra) at 570-572; that there was no need to prove any crime in forfeiture of property under Section 17 of
the AFF Act as civil forfeiture is a unique remedy which rests on the legal fiction the property, not the owner is the target therefore it does not require a conviction or

even a criminal charge against the owner as it is not a punishment nor is it for criminal purposes. See also the Supreme Court case of La Wari Furniture & Bath Ltd v.
F.R.N. (2019) 9 NWLR (Pt. 1677) 252 where it was held inter alia that forfeiture proceedings under Section 17 of the AFF Act is constitutional and accords with the

principle of fair hearing.

Drawing support and force from the above decisions of the Supreme Court, the Court of Appeal held in the case of Joy Obiageli Oti v. EFCC and Anor. (2020) 14

NWLR (pt.1743) 48, that civil forfeiture proceedings are intended to cause the forfeiture of proceeds of unlawful activity or act and is targeted on the property, not the

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person and is thus in rem proceedings, not in personam proceedings.

I think as sufficiently expressed by Kirby P., in the Australian case of Troja v. Troja (1994) 33 NSWLR 269 at 278 from New South Wales and endorsed by Philips L. J., in
the English case of Dunbar v. Plant (1997) 4 All E.R. 289 at 304 cited with approval by Lord Goff of Chieveley and Jones Q.C. in their authoritative book – The Law of

Restitution (Seventh Edition) page 830 paragraph 38–002 – the rule of forfeiture is an example of a wider principle that a person cannot benefit from property afflicted
with his own unlawful activity as a principle of public policy, not a principle of justice to produce a fair result in all cases.

‘Prima facie’ means at first sight or on the first appearance or on the face of it or so far as it can be judged from the first disclosure or at a glance vide Felimon Ent. Ltd.
v. Chairman EFCC (2018) 7 NWLR (Pt.1617) 56 at 69, so for an order of interim forfeiture of property to be made, the 1st respondent had to satisfactorily show only
prima facie evidence as defined (supra) that the property was likely proceeds of unlawful

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activity or crime and may ultimately be liable to forfeiture.

By considering and granting the ex parte application for interim forfeiture, the Court below was taken to have agreed with the respondent that it had made a prima facie

case for forfeiture of the pieces of jewellery and that the respondent had discharged the burden of proof under Section 17(1) of the AFF Act.
The burden then shifted to the appellant to show cause why an order of final forfeiture of the pieces of jewellery should not be made against her under Section 17(2) of

the AFF Act. The burden of proof placed on the appellant to show cause is on the balance of probability as the fact of how she came into possession of the pieces of
jewellery (supra) is specially within her knowledge thus placing the burden of proving that particular fact upon the appellant vide Section 140 of the Evidence Act read

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with Section 36(5) of the 1999 Constitution to the effect that nothing in Section 36 dealing with fair hearing shall invalidate any law by reason only that the law imposes

upon any such person the burden of proving particular facts.

​Section 17(3) and (4) of the AFF Act empowers the

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application to be made ex parte which is the form of commencement of the proceedings stipulated by the AFF Act 2006 and being the particular mode prescribed by
statute the respondent was entitled to commence the proceedings by an ex parte application.
Section 17(4) thereof lays down the step to take after the ex parte order of interim forfeiture is made for the making of the final order of forfeiture. Section 17(6) of the

AFF Act, also, emphasizes that an order of forfeiture under this Section shall not necessarily be based on a conviction for an offence under the Act or any other law.

Going strictly by the statutory provisions (supra) the application to set aside the interim order of forfeiture of the pieces of jewellery was inappropriate in the
circumstances of the case as rightly held by the Court below.

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​Notwithstanding that the application to set aside the order of interim forfeiture was not properly made or laid, the materials placed before the Court below for the ex

parte application satisfied the requirements for the Court below to issue the ex parte order of interim forfeiture of the pieces of jewellery, in my modest view vide

24

Dame Patience Jonathan v. F.R.N. (supra).

In showing cause, the appellant caused to be deposed in one breath that the pieces of jewellery found in her possession, the subject matter of the proceedings, were

gifts made to her while in office as Minister of Petroleum Resources, and, yet in another breadth that the pieces of jewellery comprised gifts to her spanning near fifty

(50) years. There appears to be internal conflict between the two versions as to amount to the deponent speaking through both sides of the mouth, so to say.
Be that as it may, the particulars of those that allegedly made the gifts of the pieces of jewellery to the appellant were not disclosed. It was necessary to disclose their

identities, not to have left it at large or in nebulous and anonymous shape as the appellant did in the present case. Because personal gifts from personal friends and

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relatives to a public officer while in public office that are customary in nature may be tolerated, but not otherwise. For Section 10 of the Code of Conduct Bureau and
Tribunal Act CAP. C15 Laws of the Federation, 2004, states that –

“Gifts or benefits to kind

(1) A public officer

25

shall not ask for or accept any property or benefits of any kind for himself or any other person on account of anything done or omitted to be done by him in the
discharge of his duties.
(2) For the purpose of Subsection (1) of this Section, the receipt by a public officer of any gifts or benefits from commercial firms, business enterprises or
persons who have contracts with the Government, shall be presumed to have been received in contravention of Subsection (1) of this Section, unless the
contrary is proved.
(3) A public officer shall only accept personal gifts or benefits from relatives or personal friends to such extent and on such occasions as are recognized by
custom.

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Provided that any gift or benefit to a public officer on any public or ceremonial occasion shall be treated as gifts or benefits to the appropriate institution
represented by the public officer, and accordingly, the mere acceptance or receipt of any such gift or benefit shall not be treated as a contravention of this
provision”.
​The appellant did not therefore show cause on the balance of probability that the about $40 million gargantuan and unusual humongous

26

accumulation of wealth in the pieces of jewellery in issue were personal gifts or benefits from relatives or personal friends to such extent and on such occasions to

make the pieces of jewellery without blemish and/or acquired legitimately or lawfully.

In saying so, I believe what is unlawful activity is simply an activity that is not lawful or conduct that is not authorized by law or illegal conduct or conduct involving
moral turpitude (Black’s Law Dictionary, Eighth Edition page 1574).

At the risk of repetition, Section 44(2) (a) of the 1999 Constitution stipulates that nothing in Subsection(1) thereof with respect to the sanctity and ownership of

property shall be construed as affecting any general law relating to forfeitures for breach of any law whether under civil process or after conviction for an offence. The

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phrase ‘general law’ denotes law that is neither local nor confined in application to particular persons but applies to all persons or place of a specified class throughout

the jurisdiction (Black’s Law Dictionary supra page 900).

​Accordingly, the AFF Act of 2006 qualifies as general law and the unlawful

27

activity here which hinged on colossal accumulation of wealth in pieces of jewellery that amounted to about $40 Million by a public officer such as the appellant at the

material time while in public service impinged on breach of the relevant provisions of the Code of Conduct and Tribunal Act (supra); a law enacted by the National

Assembly of Nigeria.
In addition, when it was the turn of the appellant to show cause against final forfeiture of the pieces of jewellery, it was open to the appellant who was then under the

burden to establish that the pieces of jewellery were excessively valued by the respondent to depose or cause to be deposed a contrary figure or value in

remonstration to the estimate made by the respondent. Not having done so, the estimated value of the pieces of jewellery given by the respondent at about $40 Million

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for the umpteen time remained unassailable, in my modest view.

So, the version of the respondent that the pieces of jewellery were bought by the appellant while in public service as Minister of Petroleum Resources prima facie
evidenced by the written statement of one of the jewellery traders to the EFCC (respondent) that

28

she sold pieces of jewellery to the appellant while the appellant was in public office as shown by some of the invoices attached to the affidavit in support of the

application by the respondent remained unmoved or not displaced.

Accordingly, the Court below was right in the decision it reached when it ordered final forfeiture of the about $40 million worth of pieces of jewellery found in

possession of the appellant who did not even suggest or give contrary value or figure to the about $40 million estimate given by the respondent to indicate the pieces

of jewellery were within her legitimate emoluments while in public service as Minister of Petroleum Resources of the Federal Republic of Nigeria.

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In the result, I find no substance in the appeal and hereby dismiss it and affirm the judgment of the Court below (Oweibo, J.). Parties are to bear their respective cost.

​OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular opportunity to peruse, in draft, the erudite leading judgment delivered by my learned brother: Joseph Shagbaor

Ikyegh, J.C.A. I endorse, in toto, the reasoning and conclusion in it. The appellant was unable to discharge the onus probandi

29

ladden on her by law. The lower Court's decision was not offensive to the law so as to magnet the reprobation of this Court. I, too, penalise the appeal with a deserved
dismissal. I abide by the consequential orders decreed in the leading judgment.

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ABDULLAHI MAHMUD BAYERO, J.C.A.: I have read in advance, the draft copy of the lead judgment just rendered by my learned brother Joseph Shagbaor Ikyegh, JCA.

For the more detailed analysis and the reasoning contained in the lead judgment, I agree entirely with the conclusion that the appeal lacks merit. It is hereby dismissed

by me. I abide by the consequential orders contained therein.

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Appearances:

Mr. D. E. Idang For Appellant(s)

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Mr. A. O. Mohammed For Respondent(s)

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