Fundamental rights jurisprudence (3): Melrose v EFCC—landmark judicial endorsement

INTRODUCTION

The second part of this article which was published last week dwelt extensively on the facts of the case of Melrose General Services v Economic and Financial Crimes Commission being the decision of the Supreme Court which established authoritatively the onus of proof in fundamental rights cases. This landmark decision has its root in previous judgments of the apex court, such as Kure v Commissioner of Police, which is similar in facts and circumstances to Melrose v EFCC. In Kure v COP, the parties executed a civil contract for the supply of wild animals to the Rivers State Ministry of Culture and Tourism at the cost of N3.5 million and the money was paid into the appellant’s bank account, with a promise to deliver the animals within two weeks. The appellant did not deliver upon his promise, whereas it was discovered that he had withdrawn substantial part of the money deposited in his bank account. The appellant was arrested and arraigned before a Chief Magistrate Court for criminal breach of trust and cheating and upon due trial, he was convicted. His appeals to the High Court and the Court of Appeal were dismissed but the Supreme Court overturned his conviction, holding that the primary duty of the police is the prevention of crime and not debt recovery. The apex court relied on its previous decisions in Ibiyeye v Gold and McLaren v Jennings. The point being made in these cases is that law enforcement agencies should not criminalise civil transactions voluntarily entered into by the parties. One of the major reasons for unresolved criminal cases is the distraction to the law enforcement agencies in dabbling into civil matters, in which there is a standing rule of payment of ten percent of the sum recovered, thereby making criminal investigation and crime prevention less attractive. Let us continue with the case of Melrose v EFCC.

ADDITIONAL FACTS OF THE CASE

After the appellant had filed its motion, the 1st respondent filed a motion on notice by which it applied for orders of final forfeiture of the monies in contention to the Federal Government of Nigeria. The 1st respondent deposed to copious facts in its affidavits and contested the documents relied on by the appellant. The 1st respondent’s case was that the whole contract built by the appellant in respect of the payment of the N3.5 billion was a make-belief; that the appellant was not one of the legitimately appointed consultants by the Nigeria Governors Forum for the verification and reconciliation of the over-deductions on the Paris and London Clubs Loans; that the appellant did not carry out any consultancy work, but was only used as a medium to siphon the N3.5 billion out of the monies set aside by the 36 State Governors in the account of Nigeria Governors Forum for the payment of consultancy fees and incidental expenses. The 1st respondent stated that as at 8th August, 2016 there was no ready data in existence for the appellant to review or reconcile because it was by the Consortium’s letter dated 31st August, 2016 that the data was submitted to the Nigeria Governors Forum. The 1st respondent deposed that it wrote a letter to the Nigeria Governors Forum on 1st November, 2017 requesting for all the documents it exchanged with the appellant on the subject of investigation and that the Nigeria Governors Forum responded by a letter dated 7th November, 2017 in which it listed the documents so exchanged, but exhibit MGS 4 was not listed as one of such documents and that exhibit MGS 4 was thus not real but a make-belief for the purpose of the action. The 1st respondent asserted that the appellant falsely reproduced the work of the Consortium and represented it as its own work in exhibit MGS 4. The 1st respondent reproduced several portions of exhibit MGS 4 and the Consortium report to show exhibit MGS 4 was a word for word repetition of the Consortium’s report. The 1st respondent stated that exhibit MGS 4 was submitted long after the Nigeria Governors Forum had forwarded the Consortium’s report to the Minister of Finance; after the Consortium’s report had been used to approve the payment of the refunds by the President of the Federal Republic of Nigeria; and after part payment of the refunds had been effected. The 1st respondent exhibited the extra-judicial statement of the Director-General of the Nigeria Governors Forum, Mr Robert Mbonu in which he confirmed that he knew the Consortium but did not know the appellant and that the name of the appellant was just brought by the Chairman of the Nigeria Governors Forum; that the appellant carried out consultancy services and had done some work for the Nigeria Governors Forum, but he did not know the details; and that he signed exhibit MGS 3 in his position as the Director-General of Nigeria Governors Forum on the directive of the Chairman of the Nigeria Governors Forum.

JUDGMENT OF THE TRIAL COURT

In response, the appellant, and the 2nd and 3rd respondents filed counter affidavits and opposed the 1st respondent’s motion on notice. The trial court heard and determined the appellant’s application and the 1st respondent’s application together. It held that section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act 2006 (the Act) was not unconstitutional under the provisions of the 1999 Constitution, particularly the provisions in Chapter IV of the Constitution. It held that section 17 of the Act was not in conflict with the Evidence Act. It also held that by virtue of the section, the appellant had the burden to show why the money should not be finally forfeited because it was the appellant who asserted that the funds came from legitimate source or origin. The trial court found that the presidential approval for payment to the States of the Federation based on the Consortium’s report had been made before the appellant presented its report to the Nigerian Governors Forum on the same matter. It found as a fact that the process followed before the Consortium was paid its consultancy fee was not followed before the appellant was paid the N3.5 billion and it held that because the payment did not follow the same process as that to the Consortium, the money paid to the appellant is reasonably suspected to be the proceeds of unlawful activity under section 17 of the Act. It found, as contended by the 1st respondent, that the documents relied on by the appellant were make-beliefs and that the appellant did not carry out any consultancy work to be entitled to the payment made. The trial court concluded that the 1strespondent reasonably satisfied it that the funds in the appellant’s bank account were proceeds of unlawful activity under the Act; the Money Laundering Act, 2004; the Economic and Financial Crimes Commission (Establishment, etc.) Act, 2004; or other laws enforceable under the Economic and Financial Crime Commission (Establishment, etc.) Act, 2004. In sum, it found that the appellant failed to show why the orders of interim forfeiture should be set aside. So, the trial court dismissed the appellant’s application, and made a final order of forfeiture of the sums of money to the Federal Government of Nigeria.

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THE APPELLATE PROCESS

The appellant appealed to the Court of Appeal on five grounds of appeal. The Court of Appeal upheld the trial court’s findings and also found more anomalies in the case of the appellant, and concluded that the findings made and conclusion reached by the trial court were supported by the evidence on record. Consequently, it upheld the final order of forfeiture made by the trial court, dismissed the appeal, and affirmed the judgment of the trial court. Still aggrieved, the appellant appealed to the Supreme Court on sixteen grounds of appeal. On their parts, the 2nd and 3rd respondents adopted the issues for determination formulated by the appellant and canvassed arguments in support of the appeal, and prayed the Supreme Court to set aside the judgment of the Court of Appeal.

THE LAWS INTERPRETED BY THE SUPREME COURT

In determining the appeal, the Supreme Court considered the provisions of section 17 of the Advanced Fee Fraud and Other Fraud Related Offences Act, 2006, which read:

“(1) Where any property has come into the possession of any officer of the Commission as unclaimed property or any unclaimed property is found by any officer of the Commission to be in the possession of any other person, body corporate or financial institution or any property in the possession of any person, body corporate or financial institution is reasonably suspected to be proceeds of some unlawful activity under this Act, the Money Laundering Act of 2004, the Economic and Financial Crimes Commission Act of 2004 or any other law enforceable under the Economic and Financial Crimes Commission Act of 2004, the High Court shall upon application made by the Commission, the officers or any other person authorised by it and upon being reasonably satisfied that such property is an unclaimed property or proceeds of unlawful activity under the Act stated in this subsection make an order that the property or the proceeds from the sale of such property be forfeited to the Federal Government of Nigeria.

Notwithstanding the provision of subsection (1) of this section the High Court shall not make an order of forfeiture of the property or the proceeds from the sale of such property to the Federal Government of Nigeria until such notice or publication as the High Court may direct has been given or made for any person, corporate or financial institution in whose possession the property is found or who may have interest in the property or claim ownership of the property to show cause why the property should not be forfeited to the Federal Government of Nigeria.

Application under subsection (1) above shall first be made by a motion ex-parte for interim forfeiture order of the property concerned and the giving of the requisite notice or publication as required in subsection (2) of this section.

At the expiration of 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 subsections (2) and (3) of this section, an application shall be made by a motion on notice for the final forfeiture of the property concerned to the Federal Government of Nigeria.

(5) In this section –

‘Financial institution’ shall have the same meaning as in section 7 of this Act; ‘Property’ includes assets whether movable or immovable, money, monetary instruments, negotiable instruments, securities, shares, insurance policies and any investments.

An order of forfeiture under this section shall not be based on a conviction for an offence under this Act or any other law.”