Non-Conviction Based Forfeiture Assets Legislations are laws that require no guilty of an accused person before court can make forfeiture of his assets reasonably suspected of proceeds of crime.

NCB, as it is popularly called, is an initiative of UNITED NATION in one of its conventions known as the United Nations Convention against Corruption. ( UNCAC)

Many countries of the world are signatories to this Convention without Nigeria being left behind.

NCB asset forfeiture is a critical tool for recovering the proceeds and instrumentalities of corruption. It is a legal mechanism that provides for the restraint, seizure,

and forfeiture of stolen assets without the need for a criminal conviction; it can be essential to successful asset recovery when the violator is dead, has fled the jurisdiction, is

immune from investigation or prosecution, or is essentially too powerful to prosecute.

A growing number of jurisdictions have established NCB asset forfeiture regimes and

such regimes have been recommended at regional and multilateral levels by a number

of organizations. The United Nations Convention against Corruption (UNCAC) urges

countries to consider permitting NCB asset forfeiture of stolen assets when the offender cannot be prosecuted.

Example of NCB legislations in Nigeria are Advance Fee Fraud and other Fraud Related Offences Act 2006, Economic and Financial Crimes Establishment Act 2004, Money Laundering Act ,2004.

In the cause of this article , recourse would be made to the above legislations and cases decided on them.

Other Countries which have the same legislations are numerous. Two exmples of such legislations in other countries are: Laundering Act of Thailand, Proceeds of Crime Act 2002 (POCA) Of United Kingdom.

However , interpretation of the above legislations by the courts seems to have dispelled the principle of Presumption of Innocence.

Presumption of Innocence is one of the most basic requirements of the Accusatorial system of Criminal Justice in Common Law Countries. The onus is on the prosecution to prove the guilt of an accused person.

By virtue of the provisions of section 36(5) of the 1999 constitution , 2011 as amended , ‘every person charged with a criminal offence is to be presumed innocent until he is proved guilty’. This burden which is always on the prosecution must be proved beyond reasonable doubt by virtue of the provisions of section 135 of the Evidence Act,2011. Thus , it not for the accused to prove his innocence.

Thus in the case of Yinusa vs State ( 2017) LPELR 43014(CA)”

In all cases where the commission of a crime is in issue, the prosecution is bound to prove the guilt of the accused person being the party

who asserts in the affirmative. There is no duty on the accused person to prove his innocence…See also the following cases Yesuf v FRN ( 2017)LPELR 43830(SC); YELLI v. STATE (2017) LPELR-42134(CA);

Also in the case of ONWE v. STATE(2017) LPELR-42589(SC)the Supreme Court held that:

“The law is very clear on who the burden of proof in a criminal case reside. Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and

Section 135(2) of the Evidence Act have placed the burden of proof in criminal cases squarely on the prosecution, who must prove its case beyond reasonable

doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift.

However , the principle of Presumption of Innocence does not apply to Non Conviction Based Forfeiture Assets offences/proceedings /Legislations. Thus in the cause interpretation of section 17 of Advance Fee Fraud Act 2014 in the cases of LA-WARI FURNITURE & BATHS LTD v. FRN & ANOR (2018) LPELR-43507(CA) and JONATHAN v. FRN (2018) LPELR-43505(CA) the court of appeal held :

“On presumption of innocence, I must say that the Appellant in the instant case was never on trial for a criminal offence, therefore the doctrine of presumption of innocence is not applicable to

the circumstances of the case. The issue of innocence of the Appellant does not come into play in a non-conviction based forfeiture proceeding.”

From the above pronouncement of the court of Appeal , one can rightly reach a conclusion that section 17 of the Advance Fee Fraud Act ,2004 does not require trial and conviction before making order of forfeiture because the appellant is not the one being tried .

Thus the court of Appeal held in JONATHAN v FRN ( SUPRA) that:

“In answer to each of these questions from the Appellant, from the first, the provision of Section 17 of the AFF 2006 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. In my opinion, Section 17 provides properly so called for an action

in rem and not a form of quasi-criminal proceedings. In any event, the law is that where a statute prescribes the mode of doing an act, such an act can only be competently done in the way and manner prescribed by the statute .

Also another case which illustrate Non Conviction Based does not require trial and conviction and shift the onus of proof on the defendant is DAUDU V FRN ( 2018) LPELR 43637(SC). In the above case the held :

“Proving Money Laundering cases is a herculean task because it

requires a prior establishment of the predicate offence before the

money laundering aspect can be established. To obviate this problem a

remedy was introduced by statutorily inferring money laundering from

not only the conduct of the defendant but his lifestyle which is similar

to the Proceeds of Crime Act 2002 of the UK. Even though Section

36(5) of the 1999 Constitution provides that every person charged with

a criminal offence shall be presumed to be innocent until he is proven

guilty, the proviso allows for shifting the burden of proof on the

defendant. The Section provides thus:- “36(5) Every person who is

charged with a criminal offence shall be presumed innocent until he is

proved guilty provided that nothing in this Section shall invalidate any

law by reason only that the law imposes upon any person the burden

of proving particular facts”. By Section 19(3) of the Money Laundering

Act, if an accused person is in possession of pecuniary resources or

property which is disproportionate to his known source of income, or

he obtained an accretion to his pecuniary resources or property, the

burden of giving a satisfactory account of how he made the money or

obtained the accretion shifts to him. The prosecution is relieved of the

burden of having to prove that the money so found in his account or in

his possession is proceeds from illicit traffic in narcotic drugs or

psychotropic substances or of any illegal act. To explain the point

further, where A is a fixed salary earner and suddenly his account is

credited with an amount beyond his income or has property which his

legitimate income cannot afford, the burden shifts to him to explain

how he got the money with which he bought the property or the

legitimate transaction he was engaged in for which the account was

credited.’

Similar situations happened in the European Court of Human Rights Philips vs The United Kingdom ( application no 41087/98) and the decision reached by the court was in no way different from the verdict reached by the Supreme Court in the case of DAUDU VS FRN ,SUPRA. See also the following cases from other jurisdictions

United States as it is in the case of: UNITED STATES VS. USERY (95-345) 518 U.S. 267 (1996), in South Africa in the case of:- SIMON PROPHET VS. THE NATIONAL DIRECTOR OF PUBLIC

PROSECUTION CCT 56/05 (SOUTH AFRICA) and in the European Court of Human Rights as in the case of:-GOGITIDZE & OTHERS VS. GEORGE ECHIR (2015).

In the light of the provisions of Money Laundering Act , Advance Fee Fraud Act , and their interpretations in the above cases ,the onus of proof shifts on the defendant and never violate the presumption of Innocence which is one of the aspect of right to fair trial secured under subsection 5 of section 36 of the 1999 Constitution of the Federal Republic of Nigeria , 2011 as amended.

Also , looking at the rate at which corruption is being perpetrated in Nigeria , government at all levels should do everything possible through legislations to reduce it to the barest minimum.

Olaniyi Timothy Olamide is a law student of ABU , Zaria and can be reached via 08144856315 or [email protected].