Fundamental Rights Jurisprudence (7) Melrose VS EFCC – Landmark Judicial Endorsement

INTRODUCTION

The sixth part of this article which was published last week dwelt on the case of Melrose General Services v Economic and Financial Crimes Commission (2025) 1 NWLR (Pt.1972) 1, being the decision of the Supreme Court, which established authoritatively the onus of proof in fundamental rights cases. The focus is to restore the original intent of the drafter (CJN) of the Fundamental Rights (Enforcement Procedure) Rules, principally to protect, enforce and preserve the rights granted to all citizens and persons under the Constitution.

The Courts are thus enjoined to “constantly and conscientiously seek to give effect to the overriding objectives of the Rules at every stage of human rights action, especially whenever it exercises any power given it by these Rules or any other law.” Thus, the court must be purposive and proactive, in offering protection to any applicant who seeks to enforce any of the fundamental rights listed under Chapter IV of the Constitution. In all cases, the person who alleges to be a victim of human rights violation or abuse should be the first to approach the Court for redress. At that point, if he seeks to protect his life against unlawful arrest or detention, the court must oblige him, given that section 33(1) grants the right to life to every citizen. It is for the respondents to show to the court the infractions that the applicant has committed that would justify his arrest and incarceration.

Beyond the capacity and strength of the applicant, the court is to advance the purpose of the Rules in order to assist the applicant to achieve the protection granted to him under Chapter IV. There should be no case of self-imposed restrictions from the Court, for instance to jump into the minds of the respondent to hazard a guess as to why the applicant may have been arrested or detained in order to deny his request for his release on bail or for the respondent to produce him in court to show cause why he should not be released.

Once the life or liberty of the applicant is involved, the primary target of the court should be to grant some interim reliefs that will preserve such life or liberty, ex-parte, no matter the gravity of any offence that may be alleged against the applicant. This is the justification for the laudable decision of the Supreme Court in Melrose v EFCC.

DECISION OF THE SUPREME COURT IN MELROSE V EFCC

The decision in the case of Melrose v EFCC was a split one with a majority of three Justices to two, Ogbuinya, J.S.C. and Abiru, J.S.C. dissenting. Even though the majority opinion represents the decision of the Court, it is also important to view the dissenting opinions from the prism of the minority, in order to have another view of the case and the decision.

DISSENTING OPINION AND NOTABLE PRONOUNCEMENTS

On burden of proof on parties to forfeiture action under section 17 of Advance Fee Fraud and Other Fraud Related Offences Act, 2006 and whether same was respectively discharged in this case:

By virtue of section 17(1) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, the initial legal burden of proof that property is proceed of unlawful activity is on the applicant for an interim forfeiture order. On satisfaction of that legal burden of proof, the evidential burden of proof shifts to the person, corporate, or financial institution, in whose possession the property is located or who may have any interest therein or claim ownership of it to show cause why the property should not be forfeited to the Federal Government of Nigeria.

In this case, the trial court was reasonably satisfied on the footing of the materials presented before it that the funds were a product of an unlawful activity hence the trial court made the interim forfeiture order against the property. Put differently, the 1st respondent fulfilled the initial legal burden of proof as ordained by section 17(1) of the Act. And the burden shifted to the appellant to show cause by producing a satisfactory explanation or excuse why the property should not be forfeited to the Federal Government of Nigeria. But the appellant was unable to show cause why the funds should not be forfeited to the Federal Government of Nigeria.

Per OGBUINYA, J.S.C. at pages 123-126, paras. E-C:

“It cannot be gainsaid that the copious provision of section 17 of the AFFA, catalogued above, is the foremost template in the determination of the burden of proof between the parties herein. In the first place, the first respondent, via its averments in support of the motion, placed sufficient materials that the property in dispute was ‘reasonably suspected’ to be proceeds of some unlawful activities.

Incontestably, the trial court was reasonably satisfied, on the footing of those materials, that the funds were a product of an unlawful activity which propelled it to grant the interim forfeiture order against the property. In this wise, the first respondent fulfilled the initial legal burden of proof as ordained by the generous provision of sub-section of section 17 of the AFFA. On satisfaction of the legal burden of proof supra, the evidential burden of proof will then shift to the person, corporate or financial institution, in whose possession the property is located or who may have any interest therein or claim ownership thereof to show cause why the property should not be forfeited to the Federal Government of Nigeria.

In this context, ‘to show cause’ denotes ‘to produce a satisfactory explanation or excuse, usually in connection with a motion or application to court,’ see Bryan A. Garner, et alia, ninth edition, Black’s Law Dictionary (USA: West Publishing Co, 2009) page 1505. It follows that ‘to show cause’ here implies to offer adequate reason(s) or explanations that will foreclose and prevent the forfeiture of the property to the Federal Government of Nigeria. To my mind, this is akin to an investiture of the burden of proof on any claimant of the property that is the subject-matter of final forfeiture proceedings. In effect, the ambitious provision has proprio vigore clothed the appellant, the undoubted claimant of the funds, with a laborious burden of proof that the property was not amenable to forfeiture to the Federal Government of Nigeria.

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It must be stressed that the standard of proof, based on the provision of section 134 of the Evidence Acts, 2011, is on the balance of probabilities, not beyond reasonable doubt as decreed by the criminal jurisprudence. The portion of the above clear provision that the burden of proof vests on the claimant of the property has since received the blessing of this court. In Jonathan v. FRN (supra), one of the loci classici on forfeiture, at page 577, Muhammad, JSC, insightfully, declared:

‘In according the words in the section their simple grammatical meaning it becomes evident that, though the trial court is empowered to grant upon ex parte application an order of “interim forfeiture” in respect of money or property suspected to be proceeds of unlawful activity, it is a condition precedent to order being made that the person against whom the order is made be simultaneously given notice of “interim order of forfeiture” and a further order commanding him to show cause within the time specified by the court why the property should not be forfeited to the Federal Government of Nigeria. Final order of forfeiture of the property is only possible, therefore, if the owner of the property or a person who has interest in or claims to the property has failed to show cause within the time ordered by the court why the “interim order” of forfeiture to the Federal Government of Nigeria should not be made “final”.’

In another locus classicus on forfeiture proceeding, La Wari Furniture & Baths Ltd. v. FRN (2019) 9 NWLR (Pt. 1777) 262, at pages 301 and 302, Eko, JSC, incisively, proclaimed:

‘I agree with the appellant that section 36(5) of the Constitution provides that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. But there is also the proviso to Section 36(5) of the same Constitution that provides that nothing in section 36 of the Constitution shall invalidate any law by reason only that the law imposes upon such a person the burden of proving particular facts. The provision in section 17 of the Act No. 14, 2006 requiring any person affected by the forfeiture orders to show cause, within 14 days, why the property, the subject of the interim forfeiture order, shall not be forfeited imposes on the interpleader the burden of proving that the property, the subject of the interim order, was acquired bona fide and it is not a proceed of any unlawful or criminal activities. However, the “notice to show cause” for purposes of audi alteram partem must give sufficient particulars of the property in respect of which the person affected shall show cause why it shall not be forfeited!’