A Review Of The ACJA’s Provisions On Restoration Of Property
Chukwuemeka Castro Nwabuzor (Research Fellow, NIALS)
The objectives of the Administration of Criminal Justice Act (ACJA), 2015 as captured in section 1 ACJA include the promotion of efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime, and protection the rights and the interest of the defendant and the victim indicate a deliberate shift from punishment as the main goal of the criminal justice to restorative justice which pays attention to the needs of the society, the victims, vulnerable persons and respect for human dignity (Yemi Akinseye-George, ‘An Overview of the Changes and Application of the Administration of Criminal Justice Act, 2015’ in Adedeji Adekunle, et al, Issues on Criminal Justice Administration in Nigeria (NIALS Publication, 2016) 3-4). The provisions of sections 321, 341 and 342 of ACJA are demonstrative of the paradigm shift of the ACJA to restorative justice.
Where, on the arrest of a defendant charged with an offence, any property, other than that used in the commission of the offence, is taken from the defendant, the court may order that the property or any part of it be restored to the person who appears to the court to be entitled to it, be it the defendant or any other person the defendant may direct. The court may also order that the property be applied to the payment of any costs or compensation directed to be paid by the defendant (section 341). Even where a defendant is convicted, the court may order that the property or any part of it be restored to the person who appears to it to be the owner of it (section 342(1)). The owner may however be required under the order to make or refrain from making payment to any person initially in possession of the property (section 342(1)).
After conviction, the court under section 321 ACJA may order the convict to make restitution to the victim or the victim’s estate or order for the restitution or compensation for the loss or destruction of the victim’s property. This section is laudable as it gives the victims of crime including victims of corruption and other economic and financial crimes a ground on which a case for restitution or compensation can be made.
The provisions of sections 341 and 342 of the ACJA will only come into play where an owner of the seized property is identifiable and there is no cause to determine the property as unclaimed property. Where however there is a dispute as to who the owner of a property is, the issue of ownership will have to first be established before restoration under sections 341 and 342 will be possible.
Section 341 ACJA does not permit the restoration of the instrumentality of crime. This may pose hardship to a bona fide owner for example of a means of conveyance used in the commission of a crime, where means of conveyance was stolen or used without the consent of the owner. Unlike the ACJA, the Economic and Financial Crimes Commission Act, (EFCC Act) provides exceptions where the instrumentality of crime is a means of conveyance including aircraft, vehicles or vessels (EFCC Act, section 25). The EFCC Act provides exceptions to the forfeiture of means of conveyance used as an instrumentality of crime where the owner or person in charge of ‘a common carrier’ was not a consenting party or privy to the commission of a crime (section 25(a)(i) EFCC Act) and where the means of conveyance was unlawfully obtained from the owner by another person and used in the commission of a crime (section 25(a)(ii) EFCC Act). Also forfeiture of a means of conveyance will not be possible where it is established that the unlawful act was committed without the knowledge, consent or wilful connivance of the owner (section 25(a)(iii) EFCC Act).
The forfeiture provisions under the EFCC Act apply only in relation to offences created under the EFCC Act and offences under any other law like the Advanced Fee Fraud Act (AFFA) that gives the EFCC power to prosecute. The provisions of the ACJA however apply to offences created under a Federal legislation (section 2 ACJA). The nexus being drawn here is on the application of the provisions of the exemptions contained in section 25 of the EFCC Act to other offences created under other laws. While the exemptions under section 25 of the EFFC Act may not be applicable to other laws, the fact that the provision of section 341 is not obligatory creates an avenue for persons who feel that their means of conveyance be restored, to make a good argument; urging the court to be persuaded by the exemptions under section 25 of the EFCC Act.
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