EFCC's Power Of Seizure - A Breach Of The Cardinal Principles Of Natural Justice, By Bar. Emma Akpunonu

Barr. Emma

There are two pillars of natural justice upon which the validity of every legal act is being tested. 

These principles otherwise referred to as rules of natural justice are expressed in the Latin maxim: "audi alterem patem"(hear both parties) and "nemo judex in causa sua"(one cannot be a judge in his or her case).


Audi alterem patem rule requires that all the parties to a dispute should be afforded fair hearing. In KOTOYE v. C.B.N [1989] 1NWLR (pt.98) 419 @448, Nnaemeka-Agu, J.S.C underscored the need for fair hearing thus:
"....the rule of fair hearing is not a technical doctrine. It is one of substance. 

The question is not whether injustice has been done because of lack of fair hearing. It is whether a party entitled to be heared before deciding had in fact been given an opportunity of a hearing...."

Nemo judex in causa sua on the other hand demands impartiality. It emphasizes that justice should not only be done but should manifestly seen to have been done. In the case of GARBA v. UNIVERSITY OF MAIDUGURI [1986] 4NWLR (pt.18) 559, the appellants were students of the respondent university who allegedly took part in a violent protest that resulted in wanton destruction of property and looting. A disciplinary board was set up which found the appellants culpable. Based on the report of the board, the appellants were expelled. 

The chairman of the disciplinary board was a Deputy vice chancellor whose house was damaged and looted during the protest. The supreme court based on the maxim, "nemo judex in causa sua" allowed the appeal and set aside the expulsion of the appellants.
EFCC's power of seizure is contained in section 26 of Economic and Financial Crimes Commission (Establishment, Etc) Act, 2004. 

The section provides that:
"Any PROPERTY SUBJECT TO FORFEITURE under this Act may be seized by the commission in the following circumstances-
(a) the seizure is incidental to an arrest or search; or
(b) in the case of property liable to forfeiture upon process issued by the court following an application made by the commission in accordance with the prescribed rules.
Section 24 of the aforementioned Act threw more light on the meaning of "property subject to forfeiture".

It provides that:
"Any property
(a) whether real or personal, which represents the gross receipts of a person obtained directly as a result of the violation of this Act or which is traceable to such gross receipts.
(b)within Nigeria which represents the proceeds of an offence under the laws of a foreign country within whose jurisdiction such offence or activity would be punishable by imprisonment for a term exceeding one year and which would be punishable by imprisonment under this Act if such act or activity had occurred within Nigeria, is subject to forfeiture to the Federal Government and no other property rights shall exist on it".

A community reading of the two sections, i.e sections 24 & 26 of the EFCC Act, would reveal that for a property to pass as one "subject to forfeiture", it must have been connected to or acquired in violation of the EFCC Act. Put differently, such property must be traceable to an act which constitutes offence under the EFCC Act.

The crucial question here is" who determines whether the Act has been violated before EFCC can invoke the power of seizure under the Act?" Section 29 of the EFCC Act gave us a clue. It reads:

"Where -
(a) the assets or properties of any person arrested for an offence under this Act has been seized; or
(b) any assets or property has been seized by the commission under this Act, the commission shall cause an exparte application to be made to the court for an interim order forfeiting the property concerned to the Federal Government and the court shall, if satisfied that there is prima facie evidence that the property concerned is liable to forfeiture, make an interim order forfeiting the property to the Federal Government".

It is clear from the above provision that EFCC has been empowered to effect seizure of properties before making an exparte application to the court for an interim forfeiture order. Hence, EFCC does not only prosecute offences under the Act. It also doubles as a kangaroo court that decides whether the Act has been violated so as to deprive citizens of their constitutional right to ownership of properties as guaranteed under sections 43 and 44 of the 1999 constitution of the Federal Republic of Nigeria as amended. This is a complete departure from the principles of natural justice as earlier highlighted above. Section 26 of EFCC Act has effectively made the commission a judge over their case. If one may ask, for how long should EFCC seize a property before making an exparte application to court for an interim forfeiture order? The EFCC  Act ofcourse is silent on this.

It is my humble view that EFCC's power of seizure has created rooms for serious abuse which must not be allowed to continue in any decent society. While I support a SINCERE war against corruption fought within the ambit of law, we must not subscribe to an enthronement of lawlessness. If the EFCC Act provided for an interim forfeiture order pending the determination of the case and a potential order of final forfeiture pursuant to section 30 of the Act upon conviction, what then is the rationale behind the commission's unilateral power of seizure? It may be argued that properties subject to forfeiture if not seized, may be disposed or destroyed by the accused person before the commission can make an application to court for an interim order of forfeiture pursuant to section 29 of the Act. 

This argument with due respect is not tenable! Where the commission suspects that any property is liable to forfeiture, it can compel the owner of such property to execute a bond or provide a surety who would guarantee the safety of the property pending when the commission decides to make an application to the court for an interim order of forfeiture.

In conclusion, EFCC's unilateral power of seizure as provided under the EFCC Act is too naked and could be exploited by overzealous Nigerian politicians. By allowing the commission to effect seizure before making an application to the court, section 26 of the EFCC Act is by necessary implications saying that an accused person is presumed guilty until proven innocent. This is not in tandem with the spirit of our constitution. Under the constitution, an accused person is presumed innocent until proven guilty.