The Case of Dame Patience Jonathan v Federal Republic of Nigeria (2018) and the Court of Appeal’s Revalidation of the Propriety of Civil Forfeiture Proceedings in Nigeria

By Chukwuemeka Castro Nwabuzor,

Research Fellow, NIALS

The Court of Appeal (CA) has once again settled the recurrent issue regarding the application of civil forfeiture in Nigeria. In the case of Dame Patience Jonathan v FRN (2018) LPELR- 43505 (CA), an appeal was brought against the decision of the Federal High Court to grant an interim forfeiture order based on an ex parte application by the respondent for the forfeiture of monetary property in two Nigerian commercial banks in the name of a company La Wari Furniture and Baths Limited which were reasonably suspected to be proceeds of unlawful activity. The motion for interim forfeiture was brought under section 17 of the Advanced Fee Fraud and other Fraud related Offences Act, 2006 (AFFA), section 44(2)(k)of the Constitution of the Federal Republic of Nigeria,1999 (as amended) and under the inherent jurisdiction of the Court.

The issues for determination on appeal included the constitutional validity of section 17 of the AFFA and orders made under the section. It was contended by the Appellant that section 17 of the AFFA which empowered the trial court to grant an interim forfeiture against the Appellant’s money ex-parte, upon the application of the Economic and Financial Crimes Commission (EFCC) to the Court, violated section 36(1) and 36(5) of the Constitution (on presumption of innocence). The Appellant argued that there was a distinction between the temporary acquisition of assets by the government without the payment of compensation, for the purpose of examination, investigation or enquiry as stated in Subsection (2) (k) of Section 44 of the Constitution and a situation, where based on suspicion, an application could be made to the court ex parte for an interim forfeiture of assets which may culminate into the final forfeiture to the Federal Government of Nigeria, of the assets seized or forfeited, without trial and conviction of the person concerned. The Appellant urged the court to declare section 17 of AFFA unconstitutional and to deem the interim order of forfeiture as amounting to punishment without conviction contrary to section 36(5) of the Constitution.

The Court of Appeal held that 17 of the AFFA was not only consistent with the fair hearing provisions of Sections 36 (1) (2) and (5) of the 1999 Constitution, but was squarely in line with the provision of Section 44 (2) (b) and (k) of the said Constitution. Section 17 AFFA does not require a trial and conviction before its application. Rather, it provides in the fashion of non-conviction based forfeiture models for a Motion Ex Parte to be followed by a Motion on Notice. Section 17 provides properly so called for an action in rem and not a form of quasi-criminal proceedings.

This case follows the Court of Appeal’s decision in the case of Dangabar v FRN (2012) LPELR-19732(CA), the where it refused to follow its earlier decision in the case of FRN v Nwaigwe [2009] 16 NWLR (Pt 1166) 169 and held that the Provision of Section 44 (2) (k) of the 1999 Constitution showed the intention of the law maker to validate any such law as Sections 28 and 29 of the EFCC Act which allows temporary taking over of assets of the accused persons pending the hearing and determination of a criminal case that has been pending against him. Similarly, the Court of Appeal in the interpretation of Section 35 and 36 of the NDLEA Act which are similar to the provisions of Sections 28 and 29 of the EFCC Act held in the case of FRN vs. Ikedinwa (2013) LPELR – 21120 (CA) that the provisions of Sections 28 and 29 of the EFCC Act are validated by the provision of Section 44 (2) (k) of the 1999 Constitution.

The Court of Appeal per Owoade JCA in Dame Patience Jonathan v FRN (2018) said thus ‘I make bold to say that the consistency of the Courts in holding that the process of forfeiting property in the interim is constitutional has rendered the earlier contrary view expressed by the Lagos Division of the Court of Appeal in the case of FRN v Nwaigwe [2009] 16 NWLR (Pt 1166) 169 into a minority dissenting view.’

The Court of Appeal’s decision in Dame Patience Jonathan v FRN (2018) revalidates the propriety of civil forfeiture proceedings in Nigeria. The Court also emphasised that its decision in  Dangabar v FRN (2012) which set aside the decision in FRN v Nwaigwe [2009] on the constitutionality of interim forfeiture orders remains its valid position.