The Court of Appeal, Lagos Division, on Wednesday affirmed the judgment of the Federal High Court in Lagos ordering the final forfeiture of multiple assets linked to retired Major General Emmanuel Jebe Atewe to the Federal Government, holding that his appeal lacked merit.
In a unanimous judgment delivered virtually via Zoom, the appellate court, presided over by Justice Boloukuromo Ugo, resolved all three issues raised in the appeal in favour of the Economic and Financial Crimes Commission (EFCC) and dismissed the appeal in its entirety.
The appeal challenged the May 5, 2023 judgment of the Federal High Court, Lagos, delivered by Justice C. J. Aneke, which granted the EFCC’s application for the final forfeiture of several properties, cash, and investment assets alleged to be proceeds of unlawful activities.
In its judgment, the Court of Appeal held that Section 123 of the Armed Forces Act (AFA) and the decision in General Jafaru Muhammed v. EFCC, relied upon by Atewe, were inapplicable to his case.
The court held that while General Jafaru was a serving military officer, Atewe is a retired military officer who admitted that fact in his affidavit to show cause before the trial court.
The appellate court further held that Section 123 of the Armed Forces Act applies only to serving military personnel and, therefore, could not avail the appellant.
The court also held that the forfeiture proceedings before the Federal High Court were sui generis, being proceedings directed solely against the assets and not against the person of the appellant.
It found that Atewe failed to satisfactorily explain how he lawfully acquired the assets sought to be forfeited, noting that his explanation merely referred to unspecified honoraria without providing sufficient particulars or evidence linking those payments to the acquisition of the properties.
The appellate court further rejected Atewe’s argument that the institution of civil forfeiture proceedings while criminal charges involving substantially the same transactions were pending amounted to an abuse of judicial process.
It held that the pendency of a criminal prosecution does not preclude the EFCC from pursuing civil forfeiture proceedings under the law.
Consequently, the Court of Appeal dismissed the appeal and affirmed the judgment of Justice Aneke forfeiting the assets to the Federal Government.
Justice Aneke had held that Atewe failed to satisfactorily explain the lawful source of the assets after the EFCC established reasonable grounds to suspect that they were acquired with proceeds of unlawful activities.
The trial court also rejected Atewe’s contention that the forfeiture proceedings constituted an abuse of court process because he was already standing trial in a separate criminal case involving substantially the same transactions.
In reaching that decision, the Federal High Court relied on the Court of Appeal’s earlier decision in Air Vice Marshal Jacob Adigun v. EFCC, which established that civil forfeiture proceedings under Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act are independent of criminal proceedings and may continue even where a criminal prosecution involving the same assets is pending.
The assets forfeited include ₦3.97 million in cash; Plot MF62 at the Outer Northern Expressway, Abuja; Plot No. 1228, Jahi, Abuja; Plots CP6386 and CP6387 at Sabon Lugbe East Extension Layout, Airport Road, Abuja; one-hectare parcels of land in Kuje District; a 50-hectare farmland at Gaube Farmland Extension II Layout, Kuje; a parcel of land at Commercial Layout, Yenagoa Gardens, Bayelsa State; 30,000 MTN shares held by Stanbic IBTC Asset Management Limited; and Plot No. CP10, Sector Centre B Layout, Kuje, Abuja.
The EFCC told the trial court that investigations into the alleged diversion of over ₦8.5 billion belonging to the Nigerian Maritime Administration and Safety Agency (NIMASA) through the Joint Task Force (Operation Pulo Shield) revealed that funds were routed through several companies and proxies before being used to acquire the assets.
The Commission maintained that the properties were reasonably suspected to have been acquired with proceeds of unlawful activities and were therefore liable to forfeiture under the Advance Fee Fraud and Other Fraud Related Offences Act.
