Fundamental rights jurisprudence (5)Melrose v EFCC-landmark judicial endorsement

INTRODUCTION

The fourth 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 (2025) 1 NWLR (Pt.1972) 1, decision of the Supreme Court on onus of proof in fundamental rights cases. This is not the first time that the apex court has interpreted the conduct of law enforcement agencies in relation to the infringement of the fundamental rights of citizens. In Commissioner of Police, Ondo State v. Obolo (1989) 5 NWLR (Pt.120) 130, the applicant, Festus Obolo, sought and obtained leave of the High Court for enforcement of his fundamental rights against the Commissioner of Police and Divisional Police Officer for Ondo State and Okitipupa respectively. He wanted the two respondents to the application to show cause why his fundamental rights were curtailed or violated by them. The applicant complained that whenever there was a case of armed robbery, the police as a matter of routine would pick him up as a suspect, have him put in custody and subject him to treatments which violated his dignity. The case was tried on the affidavits of the parties and the learned trial Judge, having heard arguments of counsel on behalf of either side found for the applicant in all his claims save the one for injunction, and awarded him compensatory damages of N250.00. Both parties, being dissatisfied with the decision of the court below, appealed to the Court of Appeal. The respondents in the trial court appealed against the decision on two grounds while the applicant, dissatisfied with the award of compensatory damages of N250.00, cross-appealed on quantum of damages. The Court of Appeal wasted no time in dismissing the appeal and allowing the cross-appeal. The appellate court held that the test as to what is reasonable belief that a person has committed an offence is objective. It is not what the arrestor considers reasonable but whether the facts within his knowledge at the time of the arrest disclosed circumstances from which it could be easily inferred that the person arrested committed the offence. More importantly however, the court pronounced upon the issue of burden of proof in fundamental rights cases, holding that where a party to a suit claims to have been unlawfully arrested by another, the burden of proving the legality or constitutionality of the arrest and imprisonment is on the party who effected the arrest by adducing evidence that the arrested person was arrested on a reasonable suspicion of his having committed a criminal offence, or that the arrest was reasonably necessary to prevent his committing a criminal offence.

On burden of proving legality of an arrest:

Where the objective test of whether there was reasonable and probable cause for the arrest or prosecution is satisfied by the arrestor or prosecutor, the onus lies on the person who has been arrested or prosecuted to establish that his arrestor or prosecutor did not in fact believe what, ex-hypothesi, he would have believed had he been reasonable. It is a matter for the court to determine whether or not there is good ground for the arrest and it cannot do so if the party who knew the reasonable ground for arresting the respondent holds on to it. In the instant case, this could not have been successfully done without the appellants disclosing to the trial court in their counter-affidavit what the respondent did, or the role he played or the extent of his involvement in the armed robbery to justify his arrest on 3rd October, 1981 and his subsequent imprisonment for more than four days.”

DECISION OF THE SUPREME COURT IN MELROSE V EFCC

On what applicant for interim forfeiture of property must prove to succeed and when owner of property need to prove property was not acquired from unlawful activity:

By virtue of the provisions of section 17 (1) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, the primary burden is on the applicant to show the activity that produced the property and to show that the activity is in breach of any of the statutes listed in the provision of section 17 (1) of the Act. It is illegal to grant the interim order of forfeiture when the applicant has not shown the activity that yielded the property and or that the activity is in breach of any of the statutes listed in the section. The duty of a property owner to show that the property is not proceeds of an illegal activity arises only after an interim order of forfeiture of the property is made in strict compliance with the provisions of the section 17 (1) of the Act. It is illegal to make such an order without compliance with the requirements of that provision only for the purpose of compelling the owner of a property to come before the court to show that the property is not the proceeds of an unlawful activity or to explain the source of the property. Such an order cannot validly be made under section 17 (1) of the Act, and if made, it must be set aside. In this case, the Court of Appeal erred when it held that it is the appellant that had the duty to show by affidavit evidence that the money is not from unlawful activity. In other words, the decision is contrary to the very section 17 of the Act the Court of Appeal purports to enforce.

Per AGIM, J.S.C. at page 104, paras. E-A:

“To routinely grant an application for an interim forfeiture of a person’s property without ensuring that the applicant has shown that the facts relied on for the application justify a reasonable suspicion that the property is the proceeds of an activity that is in breach of any of the statutes listed in S.17 (1) and expect or require the owner of the property to come and show that it is not the proceeds of such activity or forfeit it finally to the state amounts to an abdication of judicial responsibility, an abuse of the judicial process, an unfair judicial process, a violation of the letters and spirit of S. 17 itself and a serious violation of the law on presumption against deprivation of property except as provided in a written law and a violation of the principle that such written law must be strictly complied with. The approach of routinely granting such application as a matter of course without the court first ensuring that the application has satisfied the requirements of S. 17 (1) of the Advance Fee Fraud Act creates a new legal regime in which there would be no security of ownership of property because all ownership of property would be suspect and liable forfeiture under S. 17 (1) until the owner proves that it is not the proceed of some unlawful activity.”

On what applicant for interim forfeiture of property must prove to succeed and when owner of property need to prove property was not acquired from unlawful activity:

By the express and unambiguous words of section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, an order for interim forfeiture may be granted in respect of a property only if such property is an unclaimed property or is reasonably suspected to be proceeds of some unlawful activity under the Advance Fee Fraud and Other Fraud Related Offences Act, the Money Laundering Act, 2004; the Economic and Financial Crimes Commission (Establishment, etc.) Act, 2004; or any other law enforceable under the Economic and Financial Crime Commission Act (Establishment, etc.) Act, 2004 and if the court is reasonably satisfied that such property is an unclaimed property or proceeds of unlawful activity under the stated statutes. The requirements of reasonable suspicion and the court being reasonably satisfied are of paramount importance. These requirements indicate that orders for interim forfeiture must not be granted as a matter of course, but upon the property, the subject matter of the application, being linked to some unlawful activity under the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 and the other listed Acts. It is not sufficient for the 1st respondent to merely allege that the property was suspected to be proceeds of an unlawful activity, it must be shown how the property is derived or proceeded from the alleged unlawful activity as a basis for reasonable suspicion. It is only then that the burden will shift to the owner of the property to show that it is not proceeds of an unlawful activity under the statutes listed in the section. In this case, the money that the 1st respondent sought to have forfeited to the Federal Government of Nigeria was shown by uncontradicted evidence to be the payment for an apparently legitimate contract between the appellant and the Nigeria Governors Forum. There was no evidence to show that the contractual relationship between the appellant and the Nigeria Governors Forum was not legitimate. Further, if there was any complaint about execution of the appellant’s contractual duties to the Nigeria Governors Forum, it was purely a matter between the two contracting parties. In addition, the 1st respondent failed to reasonably link the money to any unlawful activity under any of the Acts stated in section 17 of the Act. The decision of the trial court and the Court of Appeal that the money in question was proceeds of an unlawful activity (even though no unlawful activity could be pinpointed) stemmed from sheer speculation and has no basis in the evidence on record. In the circumstances, the burden never shifted to the appellant. Therefore, the trial court erred when it granted the order of forfeiture, and the Court of Appeal also erred when it affirmed the trial court’s decision.

On when order of forfeiture can be made under section 17 of Advance Fee Fraud and Other Fraud Related Offences Act 2006 and when cannot be made:

The clear and unambiguous words of section 17(1) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 shows that the section applies only to unlawful activity under the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, the Money Laundering Act, 2004, the Economic and Financial Crimes Commission (Establishment, Etc.) Act, 2004, or any other law enforceable under the Economic and Financial Crimes Commission Act (Establishment, Etc.), 2004. In other words, by virtue of the clear words of the provisions of section 17(1) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, an order of interim or final forfeiture of property cannot be made by a court under the Act unless the applicant has shown that the property is reasonably suspected to be proceeds of some unlawful activity under the Act, the Money Laundering Act, 2004; the Economic and Financial Crimes Commission (Establishment, Etc.) Act, 2004; or any other law enforceable under the Economic and Financial Crimes Commission (Establishment, Etc.) Act, 2004. In the present case, the appellant is not accused of or being tried for the commission of any of the offences in the statutes listed in section 17 of the Act. The case is a civil forfeiture proceeding pursuant to section 17 of the Act and the contractual transaction relied on by the 1st respondent in its application for interim order of forfeiture was not shown to be an activity that is in breach of or made unlawful by any of the statutes listed in section 17 of the Act.

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