Civil and Criminal Recovery of Proceeds of Crime

CIVIL AND CRIMINAL RECOVERY OF
PROCEEDS OF CRIME IN NIGERIA
Gen.Dr. Pat Vingir (Rtd).

Time: 1 Hour, 30 Minutes
TABLE OF CONTENTS
1. Introduction
2. What is Crime?
3. What is a Civil Wrong?
4. When do Crimes and Civil Wrongs overlap?
5. Recovery of Proceeds of Crime under our

Nigerian Criminal Laws.
6. Recovery of Damages under our Nigerian Civil

Laws.
7. Notable Nigerian Cases on Recovery of Proceeds

of Crime through Civil Methodology.
8. Conclusion.
1. INTRODUCTION
The definition of asset recovery captures all activities to

investigate (search, trace and identify) illicit finance that enables
the process for the timely and successful recovery (freezing and
seizure) of assets1. A successful legal framework for tackling fiscal
crime and money laundering includes the swift deprivation of
criminals of the proceeds of their crimes committed. When criminals
are allowed to enjoy or take benefit from crime, the deterrent aim of
penal sanctions is defeated as the criminals have already to a large
extent enjoyed or gained benefit from their activities to the
detriment of the victim and the state. The Recovery of the proceeds
of crime have by prior legal jurisprudence been most attainable
through criminal trial, however in nouvelle principles and legislation
domestically and in international law, recovery of proceeds of crime
through methods more civil than criminal have evolved.
The 1988 United Nations Convention against the Illicit Traffic

of Narcotic Drugs and Psychotropic Substances (the Vienna
Convention) set the path for a new generation of legal instruments
prescribing this “dispossession” model, by prescribing confiscation
of crime proceeds2. However being a convention against the illicit
trade of narcotics, its Article 5 on confiscation measures is related to
drug offences only3. The United Nations Convention against
Transnational Organized Crime and the Protocols Thereto, 2004 4; a
newer convention, covering ‘organized crime activities’, this
including corruption, obstruction of justice and money laundering
1
https://www.gov.uk/government/collections/asset-recovery-statistics
2
United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,1988, <
https://www.unodc.org/pdf/convention_1988_en.pdf> accessed 20 June 2024.
3
Article 5, United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,1988, <
https://www.unodc.org/pdf/convention_1988_en.pdf> accessed 20 June 2024.
4
The United Nations Convention against Transnational Organized Crime and the Protocols Thereto, 2004, <
https://www.unodc.org/documents/middleeastandnorthafrica/organised-crime/
UNITED_NATIONS_CONVENTION_AGAINST_TRANSNATIONAL_ORGANIZED_CRIME_AND_THE_PROTOCOLS_THER
ETO.pdf> accessed 20 June 2024.
also advocates for confiscation, ergo cementing the legal framework
for countries to develop their essential and personalized domestic
legal measures for asset recovery from crime and other proceeds
therefrom generated. The importance of this Convention was
underscored by Kofi Annan (former Secretary General of UN) when
he stated that “criminal groups have wasted no time in embracing
today’s globalized economy and the sophisticated technology that
goes with it. But our efforts to combat them have remained up to
now very fragmented and our weapons almost obsolete. The
Palermo Convention gives us a new tool to address the scourge of
crime as a global problem. With enhanced international cooperation,
we can have a real impact on the ability of international criminals to
operate successfully, and help citizens everywhere in their often
struggle for safety and dignity in their homes and communities” 5.
Article 53 of the United Nations Convention against

Corruption, 20046 on Measures for direct recovery of property
provides as follows;
53: Each State Party shall, in accordance with its domestic law:
(a) Take such measures as may be necessary to permit another
State Party to initiate civil action in its courts to establish title to or
ownership of property acquired through the commission of an
offence established in accordance with this Convention;
(b) Take such measures as may be necessary to permit its courts to

order those who have committed offences established in
accordance with this Convention to pay compensation or damages
to another State Party that has been harmed by such offences; and
5
Remarks by Kofi Annan, UN Secretary-General at the signing of the UN 2000 Convention in Palermo on 12
December 2000.
6
Article 53, United Nations Convention against Corruption, 2004, <
https://www.unodc.org/documents/brussels/UN_Convention_Against_Corruption.pdf> accessed 20 June 2024.
(c) Take such measures as may be necessary to permit its courts or
competent authorities, when having to decide on confiscation, to
recognize another State Party’s claim as a legitimate owner of
property acquired through the commission of an offence established
in accordance with this Convention
The United Nations Convention against Corruption (UNCAC) being

the Promethean convention on asset recovery and the recovery of
proceeds of crime generally, is divided into eight chapters dealing
with specific issues of international law. There are four main pillars
in the Convention as follows:
(1) prevention;
(2) criminalization and law enforcement;
(3) asset recovery; and
(4) international cooperation.
The UNCAC explicitly identifies asset recovery as its

fundamental principle. It enjoins States Parties to establish
comprehensive domestic regulatory and supervisory regimes to
prevent money laundering7.
The greatest innovation of the Convention is contained in it’s

chapter five. Asset recovery and the return of such assets to
countries of origin is a fundamental principle of this Convention, and
chapter five is suffused with provisions such as prevention and
detection of transfers of proceeds of crime; measures for direct
recovery of property; mechanisms for recovery of property through
7
Abdullahi Shehu, ‘Key Legal Issues and Challenges in the Recovery of the Proceeds of Crime: Lessons from
Nigeria’, International Law Research, [October, 2014], DOI: 10.5539/ilr.v3n1p186, <
https://www.researchgate.net/publication/287418004> accessed 20 June 2024, 4
international cooperation in confiscation; international cooperation
for the purposes of confiscation; return and disposal of assets; the
requirement for the establishment of financial intelligence unit; as
well as bilateral and multilateral agreements and arrangements
(Articles 51–59).
Article 51 UNCAC provides as follows8: “The return of assets

pursuant to this chapter is a fundamental principle of this
Convention, and States Parties shall afford one another the widest
measure of cooperation and assistance in this regard”.
International law on the recovery of the proceeds of crime and its

evolution, developed The Financial Action Task Force (FATF),
which was established by the (G7) as an inter-governmental body to
develop and promote national and international policies to combat
money laundering and terrorist financing; it monitors members’
progress in implementing these principles according to their unique
circumstances and constitutional frameworks. FATF used concepts
culled from the Vienna and Palermo conventions to set down a
series of 40 Recommendations, which provide a complete set of
counter-measures against money laundering and terrorist financing
and proliferation of weapons of mass destruction covering the law
enforcement, the financial system and its regulation, and
international co-operation9.
Recommendation 4; Confiscation and Provisional Measures, enjoins

countries to adopt legislative measures, to enable their competent
authorities to confiscate property laundered, proceeds from money
laundering or predicate offences, or instrumentalities used in or
intended for use in the commission of these offences. It also calls
8
Article 51, United Nations Convention against Corruption, 2004, <
https://www.unodc.org/documents/brussels/UN_Convention_Against_Corruption.pdf> accessed 20 June 2024.
9
https://www.researchgate.net/publication/287418004> accessed 20 June 2024, 6.
upon countries to consider adopting measures that allow proceeds
and instrumentalities of crime to be confiscated without requiring
criminal conviction (non-conviction based confiscation).
Together, the UNCAC and the FATF 40 recommendations

provide effective tools for combating money laundering and
reforming a culture of corruption by establishing a robust framework
for asset recovery. Jurisdictions are required to implement the
international initiatives at the national level by putting in place
appropriate legal and institutional frameworks, including for the
monitoring of PEPs (Recommendation 12)10.
There is need to also note the Stolen Asset Recovery Initiative

(StAR).
StAR is a partnership between the World Bank Group and the United
Nations Office on Drugs and Crime (UNODC) which supports
international efforts to end safe havens for corrupt funds. StAR helps
countries establish the legal tools and institutions required to
recover the proceeds of corruption. StAR initiative on an effective
legal framework for the recovery of proceeds of crime notes that an
effective legal framework includes;
a) domestic criminal prosecution and confiscation, which may where

necessary, be followed by an MLA request to enforce orders in
foreign jurisdictions;
b) NCB confiscation, which may where necessary, be followed by an

MLA request or other forms of international cooperation to enforce
orders in foreign jurisdictions;
10
https://www.researchgate.net/publication/287418004> accessed 20 June 2024, 6.
c) private civil actions, including formal insolvency process;
d) criminal prosecution and confiscation or NCB confiscation

initiated by a foreign jurisdiction (requires jurisdiction over an
offense and cooperation from the jurisdiction harmed by the
corruption offenses); and administrative confiscation.
The availability of these avenues, either domestically or in a foreign

jurisdiction, will depend on the laws and regulations in the
jurisdictions involved in the investigation, as well as international or
bilateral conventions and treaties11.
Our Nigerian legislation prior to the enactment of the

Proceeds of Crime (Recovery and Management) Act, 2022 was void
of non-conviction based recovery methods. Section 7(1),(b) of the
Economic and Financial Crimes Commission (EFCC) Act (2004) gives
special powers to the Commission to secure the forfeiture of
proceeds of crime from a convict after due trial and conviction. The
section provides as follows;
7: The Commission has power to cause investigations to be

conducted into the properties of any person if it appears to the
Commission that the person’s lifestyle and extent of the properties
are not justified by his source of income.
This section vests vast powers in the Commission for the

investigation of the proceeds of crime or proceeds suspected to be
from criminal activities.
The EFCC Act, 2004 and the Money Laundering (Prohibition) Act,
2011 make provisions for seizure and confiscation but not non-
conviction based recovery of proceeds of crime. Section 7 of the
11
J. Brun Larissa and Others, ‘ Asset Recovery Handbook: A Guide for Practitioners’, World Bank Group, <
https://star.worldbank.org/sites/star/files/asset_recovery_handbook_0.pdf> accessed 20 June 2024.
Advanced Fee Fraud Act, on the laundering of funds obtained
through unlawful activity, etc, provides in its sub-section 2 as
follows;
7(2): A person who commits an offence under subsection (1) of this

section, is liable on conviction-
(a) in the case of a financial institution or corporate body, to a fine

of N I million and where the financial institution or corporate body is
unable to pay the fine, its assets to the value of the fine shall be
confiscated and forfeited to the Federal Government; or
(b) in the case of director, secretary or other officer of the financial

institution or corporate body or any other person, to imprisonment
for a term of not more than 10 years and not less than 5 years.
Section 7(5) AFF Act, provides as follows; A person who commits an

offence under subsection (3) of this section is liable on conviction to
a fine of N500,000 or twice the value of the monetary instrument or
funds involved in the transportation, whichever is higher, or
imprisonment for a term of not less than 10 years or to both such
fine and imprisonment.
Prior to the Proceeds of Crime (Recovery and Management) Act,

2022 there were no provisions under the Nigerian law for non-
conviction based confiscation of proceeds of crime.
To properly appreciate the criminal and civil recovery of proceeds of

crime, a brief background of crime and the criminal trial process as
well as civil wrongs and civil proceedings must be established.
-WHAT IS CRIME?
Crime as a concept and an act has its inception alongside the
origin and history of mankind. The first crime committed and
recorded was the murder of Abel by his brother Cain in Genesis 4:3-
9 KJV thus;
“...and Cain talked with Abel his brother: and it came to pass , when
they were in the field, that Cain rose up against Abel his brother,
and slew him...”
Crime being a a deviation from the ordinary course of expected behaviour in a

society and a violation of the law of the society can be said to be a trait inane to
humanity since creation. It is essential to consciously have regard to the fact that all
humans are capable of committing crime just as all human beings are liable to be
victims of crime. It is impossible to purge the criminal trait in human beings but it is
possible to control and deter the manifestation of this trait through sanctions on
offenders which serve as punishments to the offenders and deterrents to others.
Crime is defined by the Blacks Law Dictionary (2 nd Edition) as ‘an act

committed or omitted, in violation of a public law, either forbidding or commanding
it; a breach or violation of some public right or duty due to a whole community,
considered as a community. In its social aggregate capacity, as distinguished from a
civil injury12’.
The word “Crime” was originally taken from a Latin term “Crimen” which
means “to charge”. The Greek expression “Krimos” is synonymous to a Sanskrit
word ‘Krama’ which means “Social order”. Therefore, in common parlance the
word crime is applied to those acts that go against social order and are worthy of
serious condemnation13.
12
Crime Definition and Legal Meaning, Blacks Law Dictionary, 2nd Edition, <
https://thelawdictionary.org/crime/#:~:text=A%20crime%20is%20an%20act,distinguished%20from%20a%20civil
%20injury.> accessed 20 June 2024.
13
Abysnnia Law, ‘The Concept of Crime’, < https://www.abyssinialaw.com/study-on-line/376-criminal-law/7309-
the-concept-of-crime> accessed 20 June 2024.
Crime strictu sensu does not carry a singular globally accepted definition
attached thereto as a word, with different authors from different schools of thought
postulating and propounding diverse meanings with the common root of crime being a
‘wrong’ done by an individual going against the laws, dictates, rules, regulations of
society.
Under the law of England, crime is a legal wrong that can be followed by
criminal proceeding which may result in punishment14.
Blackstone15 has defined crime as “an act committed or omitted in violation of a

public law either forbidding or commanding it”. This definition brings in ‘Public
Law’. He further expanded his definition of crime thus; “A crime is a violation of the
public rights and duties due to the whole community, considered as a community in
its social aggregate capacity”.
Halsbury16 providing a definition in The Laws of England defined crime thus; ‘a

crime is an unlawful act or default which is an offence against the public and renders
the person guilty of the act or default liable to legal punishment’.
Ross and Jones17 are of the opinion that; crime is a legal wrong for which the offender
is punished at the instance of the state.
Glanville William in his age tested; Textbook of Criminal Law 18, defined crime as ‘a
legal wrong that can be followed by criminal proceeding which may result in
punishment’.
14
A.A.Isiaka and Ejike Francis Okpahor, ‘CONCEPT OF CRIME IN THE ADMINISTRATION OF PENAL JUSTICE IN
NIGERIA: AN APPRAISAL’, Nnamdi Azikiwe University Journal of International Law and Jurisprudence, [2018] (2).
15
William Blackstone, ‘Common Law’, [1968], <
16
Halsbury’s Laws of England, ‘Crime’, LexisNexis Buttersworth, London [1907].
17
R. Ross and R. A. Jones, ‘An Introduction to Criminal Law’, LexisNexis Butterworths, London, [1972], p.35
18
Glanville Williams , ‘Textbook of Criminal Law’, Sweet&Maxwell, (4th Edition), ISBN: 9780414037342, <
https://www.sweetandmaxwell.co.uk/Product/Academic-Law/Glanville-Williams-Textbook-of-Criminal-Law/
Paperback/30800164> accessed 20 June 2024.
Gledhill19referred to a crime as a human conduct which the state decides to prevent by
threat of punishment and through legal proceeding of a special kind.
There are views associating crime with a normal phenomenon of society, the
natural and inevitable product of collective life and social evolution. Durkheim 20 for
example is of the view that crime is the collective conscience of a people defines
crime. In other words, crimes could be determined from what is collectively
considered to be morally wrong or not.
Crime is an intentional act in violation of criminal law, which is committed without

defence or excuse and penalized by the state as a felony or misdemeanor21.
The definitions of Crime are panoply and almost inexhaustible however all schools of
thought and authors agree on the following key points;
 Crime is a wrong/legal wrong/wrong human conduct.

 Crime is committed against the laws of the public/communal rules/public law.
 Crime attracts sanctions/punishment (or the threat thereof) through legal
proceedings.
Crime is always followed by punitive/penal consequences as stated in its definitions.

This indicates that crime is a human conduct that is proscribed with penal
consequences that may give rise to criminal proceedings and criminal punishment22.
Our Nigerian criminal legislation specifically the Administration of Criminal

Justice Act, 2015, Administration of Criminal Justice Law, Lagos State, 2015 and
Evidence Act 2011 do not provide express or direct definitions for the word; ‘crime’.
19
Alan Gledhill, ‘The Penal Codes of Northern Nigeria and the Sudan’, Journal of African Law, [1963], (8), <
https://www.cambridge.org/core/journals/journal-of-african-law/article/abs/penal-codes-of-northern-nigeria-
and-the-sudan-by-alan-gledhill-london-sweet-maxwell-lagos-african-universities-press-1963-law-in-africa-series-
no-8-li-820-pp-77s/B67B4D1EF3412B5341A54B3FCBA37A21> accessed 20 June 2024.
20
Emile Durkheim, ‘The Rules of Sociological Method’, The Free Press, [1982], ISBN-13: 978-0-02-907930-0, <
https://monoskop.org/images/1/1e/Durkheim_Emile_The_Rules_of_Sociological_Method_1982.pdf> accessed
20 June 2024.
21
Paul W.Tappan, ‘Who is The Criminal?’, American Sociological Review, Vol 12(1), [February 1947], <
https://www.jstor.org/stable/2086496> accessed 20 June 2024.
22
Michael Jefferson, ‘Criminal Law’, Harlow, England ; New York : Pearson/Longman, ISBN:
14058122579781405812252, < https://archive.org/details/criminallaw07edjeff/page/n1/mode/2up> accessed 20
June 2024.
They however provide definitions for classes of crimes such as; Felony,
misdemeanour, simple offence etc.
Section 2 of the Criminal Code Act however provides a definition for ‘Offence’
thus; An act or omission which renders the person doing the act or making the
omission liable to punishment under this Code, or under any Act, or law, is called an
offence23.
The Penal Code of Northern Nigeria in Section 4(2)24 provides an explanation of

what constitutes a crime thus; “...whereby any provision of any law of the state the
doing of an act, or the making of any omission made an offence, then such acts or
omission becomes crime”. This definition is reproduced in the Sharia Penal Code25.
Additionally the Maliki School of Islamic Law being the prevalent school of Islamic
Legal Jurisprudence in Northern Nigeria, looks at and penalizes crime from the
perspective of belief in the revelation contained in the Qur’an and the Sunnah
(teachings and lifestyle practices) of Prophet Muhammad (PBUH) embodying basic
rules and commands26.
Crime is therefore any conduct contrary to the laid down laws of a society, this being
enshrined in the codified or uncodified regulations of the society with such codes
dictating punitive measures when a crime is committed by an individual in the
society.
Crime is also a religious and moral wrong attracting punishment.
WHAT ARE CIVIL WRONGS?

Crimes are however to be distinguished from Civil wrongs.
23
Section 2, Criminal Code Act, Cap 38, LFN 2004
24
Section 4(2) Penal Code of Northern Nigeria, Cap 89 Laws of Northern Nigeria 1963 (as applicable and
amended)
25
Law No. 4 of Kaduna-State, 2002.
26
Awa M.S El, ‘Punishment in Islamic Law’, American Trust Publishing, ISBN 10: 0892590157, [1984], <
https://www.abebooks.com/9780892590155/Punishment-Islamic-Law-Awa-0892590157/plp> accessed 20 June
2024.
Simply put, ‘Civil wrongs’ are conducts by an individual (natural or artificial) which
attract actions for damages or other civil remedies such as injunctions from another so
affected by these actions or conducts.
Renaud27 defines Civil wrongs thus; “Civil wrongs occur when a person wrongly
suffers a loss caused by another person, a business, or government. Wrongful losses
can be damage to property or reputation, unmet contractual obligations, physical or
psychological injury, etc”. He notes further that sometimes these wrongs fall into
both criminal and civil legal categories.
In distinguishing Crime from Civil wrong it is essential to note that for an

action to become a crime, the presence of Mens Rea and Acteus Reus must be
established. criminal wrongs require bad intent and are prosecuted and punishable by
the state. On the other hand, Civil wrongs do not require bad intent and require private
individuals to pursue justice on their own28.
Lore Rutz-Burri29 sees civil wrongs as ‘a private wrong, and the injured party’s
remedy is to sue the party who caused the wrong/injury for general damages (money).
The plaintiff (the injured party) sues or brings a civil suit (files an action in court)
against the defendant (the party that caused the harm)’.
Tort, breach of contract, and breach of trust are types of civil wrongs.
2. DISTINGUISHING BETWEEN CRIME AND CIVIL WRONGS
In distinguishing between Crime and Civil wrongs the following key points must be
noted;
27
Donald J.Renaud, ‘What are Civil Wrongs?’, Renaud Law Group, < https://renaudlaw.com/what-are-civil-
wrongs/#:~:text=Civil%20wrongs%20occur%20when%20a,criminal%20and%20civil%20legal%20categories.>
accessed 20 June 2024.
28
Donald J.Renaud, ‘What are Civil Wrongs?’, Renaud Law Group, < https://renaudlaw.com/what-are-civil-
wrongs/#:~:text=Civil%20wrongs%20occur%20when%20a,criminal%20and%20civil%20legal%20categories.>
29
Lore Rutz-Burri, ‘Civil, Criminal, and Moral Wrongs’, SOU-CCJ230 INTRODUCTION TO THE AMERICAN CRIMINAL
JUSTICE SYSTEM, University of Oregon, < https://openoregon.pressbooks.pub/ccj230/chapter/8-2-civil-criminal-
and-moral-wrongs/#:~:text=A%20civil%20wrong%20is%20a,party%20that%20caused%20the%20harm).>
 Criminal actions are by principle instituted by the State, although the victim is not
entirely precluded from instituting proceedings as well (on this See: Attorney
General Anambra State v. Nwobodo (1992) 7 NWLR (Pt. 256). Crimes are
regarded as committed against the state (as the custodian of the people’s liberty)
and the person who suffers the criminal action (as a secondary party). Thus,
generally, it is the state that prosecutes crime through the instrumentality of the
police or the office of the Director of Public Prosecution 30. See: COL.HALILU
AKILU & ANOR v. CHIEF GANI FAWEHINMI (1989) LPELR-
20424(CA). Ogundere JSC in the above-mentioned precedent (AKILU V GANI
FAWEHINMI supra), set down the following locus classicus judgment on
prosecution by private practitioners as follows; “As to the application for
mandamus before Agoro, J., and Chief Williams' S.A.N., preliminary objection
that it was an abuse of the process of Court which was overruled, Chief Williams
submitted that on the basis of the Supreme Court decision in Appeal No.
SC.215/1989 to the effect that the combined effect of the Lagos State
Administration of Justice (Miscellaneous Provisions) Amendment Edicts, 1979,
and 1984, as well as Section 340(2) of the Criminal Procedure (Amendment)
Edict 1987, which came into force on 14/7/87, is that a private prosecutor in
Lagos State could only now prosecute a person charged with the offence of
perjury, the appeal on the decision of Agoro, J., overruling his preliminary
objection should be allowed as Chief Fawehinmi applied for an order of
mandamus on 2/3/88 which was granted on 9/4/88 by Agoro, J., well after
14/7/87.
In reply Chief Gani Fawehinmi submitted that the plea of abuse of the process of
Court is capable of being misused. See WACHUKWU V. ELEWA (1985)
H.C.N.L.R. 1393 PER TOBI, J., AT 1402. He then submitted that the mere fact that
LD/329/88, the declaratory action before Famakinwa, J., which sought to nullify the
criminal proceedings before Longe, J., in LD/4c/88, was pending when mandamus
application M/87/88 was filed in Court is not a duplication of proceedings for
substantially the same cause, and is therefore not an abuse of the process of Court:
See THAMES LAUNCHES LTD. V. TRINITY HOUSE CORPORATION
30
Olarenwaju Olamide, ‘Distinction Between Criminal and Civil Wrongs’, DJetLawyer, Nigerian Criminal Law, <
https://djetlawyer.com/distinction-criminal-civil-wrongs/> accessed 20 June 2024.
(1961) CH. D. 197 AT 209 which is not applicable to the appeal in hand,especially as
the applicant is not raising the same issue by his opponent as plaintiff in another case,
and because in a declaratory action, there is nothing to be carried out by or against the
defendant. EKWUNO V. IFEJIKA(1960) 5 F.S.C. 156 159-160; where the Supreme
Court approved the dictum of Buckley, L.J., in HAMMERTON & CO. V. EARL
OF DYSART (1914) 1 CH. 822, 838; AKUNNIA V. ATTORNEY-GENERAL
ANAMBRA STATE (1977) 5 S.C.161, 177.
He then submitted that if LD/329/88 succeeds, it means LD/4c/88 subsists; if M/87/88

succeeds it means a fresh information will be preferred, thus two charges will be
pending, which is not an abuse of the process of Court unless the two information are
proceeded with simultaneously. AMAEFULE V. THE STATE (1988) 2 N.W.L.R.
(PT.75) 156. As to the construction of the amendments in Edicts numbers 1 and
4, 1979, and Edict No.7 of 1987 which amended Section 340(2) of the
C.P.L., Chief Fawehinmi submitted that there are other provisions in the C.P.L.
subsequent to Section 340(2) which give a private person the power to prefer an
information against an accused person. See Sections 342 and 343 of the C.P.L. If
the contentions of the appellant were to be sustainable, the legislature would have
expressly done so by amending Sections 340(1) and 342 of the C.P.L.
He then urged the Court to uphold the right of the private prosecutor in Lagos State to
prefer an information charging an indictable offence against any person under
Sections 340(1) and 342 of the C.P.L. AMAEFULE V. THE STATE does not
provide an answer to the question at issue in this appeal because the competence, and
locus standi of the prosecutor in respect of the offences charged in the two Courts
were not in issue. The issue in this appeal is that on the date Agoro, J., ruled that the
applicant, Chief Fawehinmi, had competence, and locus standi as a private prosecutor
to prosecute for the offences of murder and conspiracy to murder in Lagos State, the
legislation cited above,which were enacted, and in force before the date of his
decision, had expressly provided that the applicant, Chief Fawehinmi, had no such
competence, or locus standi, save for the prosecution of the offence of perjury only.
The arguments of Chief Williams in this regard are unassailable. Chief Gani
Fawehinmi's arguments are to say the least misconceived. Besides, our task has been
made much lighter by the recent decision of the Supreme Court on the point at issue
in COLONEL HALILU AKILU V. CHIEF GANI FAWEHINMI (1989) 3
S.C.N.J. P.1. In the lead judgment of Karibi-Whyte, J.S.C., at pp.22 to 31, his
Lordship opined thus:- "I am in complete agreement with the submission of Chief
Williams here, that Chief Gani Fawehinmi cannot fall within the meaning of the word
"any person" in the provisions of Section 340(1) of the Criminal Procedure Law
Cap 32 for the prosecution of offences under Part 31 unless for the offence of
perjury. This is because Section 340(2) as amended by the Criminal Procedure
(Amendment) Edict No.7 of 1987 reads as follows:- "Subject as hereinafter
provided no information charging any person with an indictable offence shall be
preferred unless the information is preferred pursuant to an order made under Part 31
to prosecute the person charged for perjury." Since the general provision in Section
340(1)is subject to the specific provision in Section 340(2), it follows that other
offences other than perjury must be initiated in accordance with the procedure
prescribed under the Criminal Procedure Law. Hence the information within the
meaning of Section 342 relied upon by Chief Gani Fawehinmi for the exercise of
his right must be limited to the offence of perjury.
The right of a private prosecutor to initiate prosecution in all other offences has been
withdrawn by the amendment to Section 340(2) of the Criminal Procedure Law
Cap 32, Vol. 11, Laws of the Lagos State, 1973, by the Administration of Justice
(Miscellaneous Provisions) Law No.4 of 1979 and the Criminal Procedure
(Amendment) Edict No.7 of 1987. A private prosecutor can now only initiate
prosecution for the offence of perjury.”
Bello. C.J.N., in supporting the lead judgment opined thus:- “Now, by the combined
effect of the Administration of Justice (Miscellaneous Provisions) Amendment Edict,
1979 and the Administration of Justice (Miscellaneous Provisions) (Amendment)
Edict, 1984 and the Criminal Procedure (Amendment) Edict, 1987. Section 340(1)
and (2) now read:- "340(1) Subject to the provisions of this section an information
charging any person with an indictable offence may be preferred by any person before
the High Court charging any person with an indictable offence for which that person
may lawfully be indicted, and wherever an information has been so preferred the
registrar shall, if he is satisfied that the requirements of the next following section
have been complied with, file the information and it shall thereupon be proceeded
with accordingly. Provided that if the registrar shall refuse to file an information, a
Judge, if satisfied that the said requirements have been complied with, may, on the
application of the prosecutor or on his own motion, direct the registrar to file the
information and it shall be filed accordingly. (2) Subject as hereinafter provided no
information charging any person with an indictable offence shall be preferred unless
the information is preferred pursuant to an order made under Part 31 to prosecute the
person charged for perjury.
The amendments by the Edicts have limited the right of a private prosecutor to prefer
an information for the offence of perjury only. He has no right to prefer an
information charging any person with murder." A classical common law view of a
Judge's reasoning process was declared in MIRE HOUSE V RENNELL (1833) 1
CL & F 527,546 by James Park, J, thus:- "Our Common Law system consists in
applying to new combination of circumstances those rules of law which we derive
from legal principles and judicial precedents; and for the sake of attaining uniformity,
consistency and certainty, we must apply those rules, where they are not plainly
unreasonable and inconvenient to all cases which arise;and we are not at liberty to
reject them, and is to abandon all analogy to them, in those to which they have not yet
been judicially applied because we think the rules are not as convenient and
reasonable as we ourselves would have devised. It appears to me to be of great
importance to keep this principle of decision steadily in view, not only for the
determination of the particular case, but for the interests of law as a science."
The summation of Chief Fawehinmi's arguments are to the effect that the amendments
made in the legislation noted above are not as convenient and reasonable as he
himself would have devised, were a lower Court to the Supreme Court to follow such
an argument, it would place the legal science of law in jeopardy and would earn the
rebuke of the Supreme Court. What one may term the "progressive" or 'radical'
argument of Chief Fawehinmi was mooted with due caveat by Lord Denning in the
Family Story at p.174, and many regarded Lord Denning as a progressive Judge
when he said: "My root belief is that the proper role of a judge to do justice between
the parties before him. If there is any rule of law which impairs the doing of justice,
then it is the province of the judge to do all that he legitimately can to avoid that rule -
or even to change it; so as to do justice in the instant case before him. He need not
wait for legislation to intervene,because that can never be of any help in the instant
case. I would emphasize, however, the word 'legitimately': the judge is himself subject
to the law and must abide by it.” The Court of Appeal is subject to the decision of the
Supreme Court and we must abide by it.
In ALADE V. ALEMULOKE & ORS. (1988) 1 NWLR (PT.69) 207 AT 212, the
Supreme Court opined thus:- "The primary responsibility of the Supreme Court
should be that of developing and maintaining consistency in the law to be applied in
our subordinate courts and of interpreting the country's fundamental law-its
constitution." As the law stands in Lagos State before the day Agoro, J., was seized of
the mandamus case, a private prosecutor had no legal backing to prosecute for
murder, or conspiracy for murder and the Court lacked jurisdiction to entertain the
application which he should have dismissed as an abuse of the process of Court. As
opined by NNAMANI, J.S.C., IN IKOMI V. THE STATE (1986) 3 N.W.L.R.
(PT.28) 340 AT 356:- "The Courts have inherent jurisdiction to prevent abuse of their
process. The judicial power which is conferred on the Courts is intended to be used in
deciding issues in genuine cases or controversies. This power of Courts to prevent
abuse of process includes the power to safeguard an accused person from oppression
and prejudice such as would result if he is sent to trial pursuant to an information
which discloses no offence with which he is in any way linked. CONNELLY V. D.
P.P. (1964) A.C. 1254, 1301, 1302.’
 Civil actions can only be instituted by the proper parties who have been directly
affected by the wrong(principle of Locus standi). it is a necessity that only
those that have been directly affected by the action would have the locus
standi to institute a case in that respect 31. See: SENATOR ABRAHAM
ADEADESANYA v. PRESIDENT OF THE FEDERAL REPUBLIC OF
NIGERIA & ANOR (1981) LPELR-147(SC) wherein Bello, JSC opined as
31
Olarenwaju Olamide, ‘Distinction Between Criminal and Civil Wrongs’, DJetLawyer, Nigerian Criminal Law, <
https://djetlawyer.com/distinction-criminal-civil-wrongs/> accessed 20 June 2024.
follows on Locus standi; ‘A general interest common to all members of the
public is not a litigable interest to accord standing. Thus a citizen without more,
though a member of the Bar of the American Supreme Court, had no standing to
challenge the constitutional validity of the appointment of a Justice of that Court
made by the President of the United States of America and confirmed by the
Senate: Ex parte Levitt 302 U.S. 633. On the same principle their status did
not give standing to congressmen to question the validity of executive actions:
HARRINGTON V. SCHLESINGER 32 SF 455 (1975), HARRINGTON V.
BUSH 553 FEDERAL REPORTER 2ND SERIES (1977) AND R. NORIAN
DAUGHTREY V. JIM CARTER 584 FEDERAL REPORTER 2ND
SERIES 1050 (1978) which were cited by Chief Akinjide, the learned Attorney
of the Federation in his brief. The decisions of the Supreme Court of India are in
line with the general rule in the United States of America: CHIRANJIT LAL V.
UNION OF INDIA (1950) SCR 869 AND DWANKADAS V. SHOLAPUR
SPINNING CO. (1954) SCR 674.’
 In criminal cases the Attorney General of the Federation or a State has the power
of Nolle Prosecui (Latin: ‘we shall no longer prosecute’) to bring a criminal
proceedings to an end. See Section 174 (1)(a)-(c) and Section 244 (1)
(a)-(c) of the Constitution of the Federal Republic of Nigeria,
1999 as amended. In civil suits, a plaintiff can abandon his claims against the
defendant and it has the same effect as a Nolle. Wambai, JSC in
OZOEMENAM EGBO v. COMMISSIONER OF POLICE, ABIA STATE &
ANOR (2021) LPELR-56551(CA)at Pp. 21-22, paras. D-E, sitting at the Owerri
Division of the Court of Appeal noted on nolle prosequi thus; “...the Attorney-
General can take over or continue the prosecution from any such authority or
person. He can also discontinue by way of nolle prosequi."
 In Criminal proceedings the evidentiary burden proof is beyond reasonable

doubt and this is placed on the prosecution see ISAAC HARAMI NDAHI v.
FEDERAL REPUBLIC OF NIGERIA (2022) LPELR-59177(CA) wherein
Tobi, JCA noted on proof beyond reasonable doubt resting on the party who
asserts thus; "...I must state that the burden to prove that the Appellant committed
the offence he was charged for is solely on the shoulders of the Respondent. The
standard of proof unlike civil cases is not a balance of probability but a very high
probability which the law refers to as proof beyond reasonable doubt.
Proof beyond reasonable doubt does not mean beyond all shadow of doubt or beyond
all reasonable doubt but rather, proof that any reasonable man will be
right to agree with the fact that the accused committed the
offence because it is compelling and convincing with no
room for any serious or substantial doubt. If the doubt is just a
fanciful doubt, that is, doubt that does not affect any of the ingredients of the offence,
the prosecution would not be said to have proved the case beyond reasonable doubt. I
will just refer to one or two cases here. In ANKPEGHER VS. THE STATE (2018)
1 NWLR (PT. 1631) 484, the apex Court per Okoro, JSC held: "Both counsel
representing the appellant and respondent respectively have admirably stated in their
respective briefs of argument the legal meaning of the phrase proof beyond reasonable
doubt and I commend them for this agreement even though they disagree on the
quantum and quality of evidence to reach that standard. For the avoidance of doubt, I
shall restate, though briefly the meaning of proof beyond reasonable doubt. In all
criminal trials, the burden is on the prosecution to establish or prove the essential
ingredients of the offence which an accused person is charged with beyond reasonable
doubt, and the prosecution will readily achieve this if it can assemble credible, cogent
and believable/or reliable evidence against the accused person.
Thus, proof beyond reasonable doubt does not mean proof beyond all shadow of
doubt. It simply means establishing the guilt of the accused
person with compelling and conclusive evidence. It does not mean
proof beyond all shadow of doubt or proof to the tilt. As was stated by Lord Denning
J, in MILLER V MINISTER OF PENSIONS (1947) 2 ALL ER 372, a case which
has been severally relied upon by Courts in Nigeria, it does not mean proof beyond
the shadow of doubt. The distinguished and revered jurist observed: The law would
fail to protect the community if it admitted fanciful possibilities to deflect the course
of justice.
If the evidence is so strong as to leave only a remote possibility in his favour which
can be dismissed with one sentence - of course it is possible but not in the least
probable the case is proved beyond reasonable doubt. See also NWATURUOCHA
V. THE STATE (2011) 6 NWLR (PT.1242) 170, SMART V. THE STATE (2016)
1-2 SC (PT.11) 41, (2016) 9 NWLR, (PT.1518) 447, OSENI V. THE STATE
(2012) LPELR-7833 (SC), (2012) 5 NWLR (PT.1293) 351, HASSAN V.THE
STATE (2016) LPELR-42554 (SC). IN THE STATE V. ONYEUKWU (2004) 14
NWLR (PT.813) 340, this Court held that the expression beyond reasonable doubt is
a concept founded on reason and rational and critical examination of a state of facts
and law rather than in fancied whimsical or capricious and speculative doubt.
From all that has been said above, it has to be noted that there is no burden on the
prosecution to prove its case beyond all doubt or to the tilt. It is just to establish the
guilt of the accused person by credible, cogent, reliable and believable evidence."
Similarly in NWATURUOCHA VS. STATE (2011) 6 NWLR (PT. 1242) 170, the
apex Court held: "Proof beyond reasonable doubt is not proof to the hilt. It is not
proof beyond all iota of doubt. One thing that is certain is that where all the essential
ingredients of the offence charged have been proved or established by the
prosecution, as done in the instant matter, the charge is proved beyond reasonable
doubt. Proof beyond reasonable doubt should not be stretched beyond reasonable
limit." This has been provided for in Section 135 of the Evidence Act 2011.
In Civil cases each party’s case has to be proven on the balance of probability and
the preponderance of evidence. On this see the lead judgment
per Andenyangtso ,JCA at Pp. 20-22, paras. E-C in MRS. FLORENCE
BAMIGBOYE & ANOR v. MR. ADEDAYO OWOLABI & ORS (2022) LPELR-
56885(CA) as follows; ‘...How a case can be proved on the balance of probability or
on the preponderance of evidence has been lucidly enunciated by this Court in the
case of OKORIE VS. UNAKALAMBA & ANOR. (2013) LPELR-22508 (CA) PP.
40-42 para G as follows: "The argument of the Appellant is that the Respondents did
not prove their case on the preponderance of evidence to warrant judgment in their
favour. How then is a case proved by preponderance of evidence or balance of
probability? The Black's Law Dictionary, 8th Edition at page 1220, has proffered an
answer that preponderance of evidence is the burden of proof in most civil trials, in
which the jury is instructed to find for a party that, on the whole, has the stronger
evidence, however slight the edge may be.
Preponderance of evidence is the greater weight of the evidence, not necessarily

established by the greater number of witnesses testifying to a fact but by evidence that
has the most convincing force, superior evidentiary weight that, though not sufficient
to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair
and impartial mind to one side of the issue rather than the other. It is on the
preponderance of evidence led by the Respondents that precipitated judgment in their
favour. The two parties led conflicting traditional history on the disputed land.
However, the Respondents further proved long possession and long usage.
The lower Court in applying the rule in KOJO VS. BONSIE (1957) 1WLR 1223,
held that the Respondents have stronger evidence than the Appellant. It is trite law
that all civil cases in Nigeria are decided on the preponderance of evidence or balance
of probability. See YAKUBU VS. JAUROYEL (2005) ALL FWLR (PT. 283) 184
AT 206. This implies that the evidence must be holistically examined and weighed on
the imaginary scale to see where it tilts or preponderates. In fact, customary law is
entirely a matter of evidence to be decided on the fact presented before the Court and
must therefore be proved in any particular case. See AGBABIAKA VS. SAIBU
(1998) 10 NWLR (PT. 571) 534 SC. This has been provided for in Section 134 of
the Evidence Act 2011.
 In criminal cases, after the conviction of the accused, the sentence is

automatically enforced by the court eg imprisonment, fine, rehabilitation etc. In
civil cases, in order to enforce the sentence (order) where the judgment delivered
is one requiring enforcement where the defendant does not comply, the plaintiff
has to get a judgement enforcement order (writ of attachment, garnishee, charging
order, writ of sequestration etc)
3. WHEN CRIME AND CIVIL WRONGS OVERLAP
Just as criminal and civil wrongs differ, there are instances wherein they overlap and
intertwine. An individual’s action can constitute both a violation of criminal and civil
law. For example, if Seun punches Anthony’s face and he loses a tooth, Anthony may
sue Seun civilly for civil assault and battery, and the state may also prosecute Seun for
punching Anthony in a criminal assault and battery suit. A notable example is the
American case of THE PEOPLE OF THE STATE OF CALIFORNIA V.
ORENTHAL JAMES SIMPSON, SUPREME COURT OF CALIFORNIA,
(1994). Simpson was first prosecuted in 1994 for killing his ex-wife and her friend
(the criminal charges of murder). After the criminal trial in which the jury acquitted
Simpson, the Brown and Goldman families filed a wrongful death action against
Simpson for killing Nicole Brown and Ronald Goldman. The civil jury found
Simpson responsible and awarded compensatory and punitive damages of 33.5
million dollars. Wrongful death is a type of tort. Torts involve injuries inflicted upon a
person and are the types of civil claims or civil suits that most resemble criminal
wrongs32. Furthermore the torts of Carousel Fraud, fraudulent conspiracy, motive,
fraudulent design and misrepresentation of material facts overlap with criminal law.
The term ‘fraud’ is generically used to describe a set of conducts that may amount to a
tortuous wrong or criminal breach. Fraud, according to the Black’s Law Dictionary
8th Edition is “a KNOWING misrepresentation of the truth or CONCEALMENT of a
material fact to induce another to act to his or detriment” 33. In SOLOMON & ORS v.
MONDAY & ORS (2014) LPELR-22811 (CA), the term fraud was defined thus:
“Fraud implies a wilful act on the part of anyone, whereby another is sought to be
deprived, by illegal or inequitable means, of what he is entitled to.
Fraud for the purposes of civil law includes ACTS, OMISSIONS and
CONCEALMENTS by which an undue and un-conscientious advantage is taken of
another on this see the recent case of; BARRISTER PETER NDUBUISI MBAH v
NATIONAL YOUTH SERVICE CORPS and ANOR, Unreported, Suit No:
FHC/ABJ/CS/611/2023.
Agube, JSC of the Court of Appeal, Makurdi Judicial Division writing the lead
judgment in JULIANA MLUMUN KERSHIMA v. JENNIFER TSETIM & ORS
32
Lore Rutz-Burri, ‘Civil, Criminal, and Moral Wrongs’, SOU-CCJ230 INTRODUCTION TO THE AMERICAN CRIMINAL
JUSTICE SYSTEM, University of Oregon, < https://openoregon.pressbooks.pub/ccj230/chapter/8-2-civil-criminal-
and-moral-wrongs/#:~:text=A%20civil%20wrong%20is%20a,party%20that%20caused%20the%20harm).
33
Black's Law Dictionary, 8th Edition (BLACK'S LAW DICTIONARY (STANDARD EDITION)) 8th Edition, Thomson
West, ISBN-10:0314151990.
(2021) LPELR-54767(CA) at P. 37, paras. B-D on Fraud in Civil suits noted; "...It is
trite that Courts must be careful in the way they accept the use of the word "fraud" by
litigants in proceedings before them, this is because fraud is so elastic in meaning as
to cover the commission of crime as well as incidents of mere impropriety. Thus,
when an allegation of fraud is made, it must be supported by particulars. See the case
of EZEKIEL OKOLI V. MORECAB FINANCE NIGERIA LIMITED (2007)
LPELR-2463 (SC)."
The interplay of criminal law and civil law and the intention of the UNCAC for the
recovery of proceeds of crime by non-conviction based methodology is made
manifest in the Proceeds of Crime (Recovery and Management) Act, 2022, Cap
C15, LFN 200434.
This statute shall be examined in detail in the course of this lecture and constitutes a
principal legislation for the purpose of the topic being discussed.
NB: Presently the Criminal Procedure Code and Penal Code (For Northern Nigeria)
have been repealed in general usage by the Administration of Criminal Justice Act,
2015. See SARAKI V. FRN, (2016) 3 NWLR (PT. 1500) 531 AT 578; ‘...With the
repeal of the Criminal Procedure Act and the Criminal Procedure Code, section 493
of the Administration of Criminal Justice Act 2015 has taken their place. ’
4. RECOVERY OF PROCEEDS OF CRIME UNDER CRIMINAL
LAW
The criminal procedure dictates that upon arrest, a suspect is to be charged to court
within a reasonable time and tried. After trial the court is to arrive at one of two
decisions. The court is either swayed by the argument of the defence and the weight
of evidence attached to it’s case and acquits the accused or it is convinced beyond
reasonable doubt by the argument of the prosecution and the weight of evidence
annexed to its case and convicts the accused of the crime charged.
34
Proceeds of Crime (Recovery and Management) Act, 2022 Act No. 16, Cap C15, Laws of the Federation of
Nigeria, 2004.
Where the court leans in favour of the prosecution it convicts the accused in its
judgment. The judgment must contain the reasons for the decision of the judge(s). The
court must return a verdict of guilt before it can pass sentence.
NB: The contents of a valid judgement have been provided for in Section 245
Criminal Procedure Law, Section 268(1) and 269 (1)Criminal
Procedure Code, Section 275 Administration of Criminal Justice Law
(Lagos State) and Section 308 Administration of Criminal Justice Act.
Where a court fails to comply with the above provisions, the judgment is liable to be
set aside. See; AIGBE V STATE, (1976), 9 &10 SC 77. See also BURAIMOH
AJAYI &ANOR V ZARIA NATIVE AUTHORITY (1963), LPELR-25395 (SC)
on when judgment can be set aside.
Conviction was defined by Atkinson J. In R. V. LONDON COUNTY QUARTER

SESSIONS APPEALS COMMITTEE EXP METROPOLITAN POLICE
COMMISSIONER (1948) 1 K.B. 670, 679 - 680 as “a conviction is an act of a
Court of competent jurisdiction adjudging a person to be guilty of a punishable
offence. The sentence or resulting order is something distinct from the conviction A
conviction is nonetheless a conviction because an ensuring penalty is not
imprisonments, nor fine, but the finding of sureties for good behaviour”. See also
EKPO V R (1947) 12 WACA 153.
NB: An accused person charged for a substantive offence may be convicted for
attempt to commit such offence. See Section 169 CPL, Section 219 CPC,
Section 160 ACJL and Section 224 ACJA.
After an accused is convicted by the court in the course of its judgement, the court
sentences the accused now turned convict (i.e mets out punishment on the convict).
The Canadian sentencing commission in 1987 defined sentencing as the judicial

determination of legal sanctions to be imposed on a person found guilty of an offence.
In ICHI V. STATE (1996) 6 NWLR (PT 977) 545, sentencing was defined as “the
judgment formally pronounced by the court or the judge upon an accused person after
his conviction in a criminal prosecution, imposing the punishment to be inflicted”.
The sentence of the court must be in accordance with that prescribed by the statute
creating the offence. The court cannot suo moto impose a higher or lesser sentence
than contained in the statute creating the offence. On this see; EKPO V STATE
(Supra).
The Supreme Court in MOHAMMED V OLAWUNMI (1993) 4 NWLR Pt. 348

ACT 401 PARAGRAPH A-H, laid down six basic principles or guidelines to aid a
court in reaching a reasonable, just and fair sentence, as follows; 
 The nature of the offence 

 Character/nature of the offender 
 Position of the offender among his confederates 
 The rampancy of the offence 
 Statutory limitation 
 Concurrency of the sentence
4.2 CATEGORIES OF SENTENCES
 Mandatory Sentence: Where the statute creating an offence prescribes a

mandatory sentence, no court can give a lesser sentence as no discretion exists to
be exercised in the matter. See the judgement of Lokulo-Sodipe, JCA in
AMOSHIMA v THE STATE (2011) 14 NWLR (Pt.1268) 530; ‘...I believe that
the point need be made that a person charged with the offence of robbery upon
being found guilty in respect of the said offence is to be punished by being
sentenced to a minimum term of imprisonment for 21 years.
It is therefore clear that a sentence of imprisonment for a period which is certain or

determinable is the punishment prescribed by law for robbery. On the other hand,
there is no minimum or maximum term of imprisonment stipulated or prescribed by
law for the offence of armed robbery.
The only punishment stipulated or prescribed for the offence of armed robbery is that
the offender upon his conviction SHALL be liable to be sentenced to death. The
ordinary meanings of "death sentence" and "death penalty" can be found in any
standard dictionary. Oxford Advanced Learners Dictionary (6th Edition) gives the
meaning of: - "Death sentence" as - "the legal punishment of being killed for a serious
crime"; while "Death penalty" is stated to mean - ''the punishment of being killed that
is used in some countries for very serious crimes.’
Offences such as armed robbery, treason, murder carry the mandatory death sentence
and this cannot be varied by any judge including the Chief Justice of Nigeria.
 Minimum Penalty: Where the statute creating an offence prescribes a minimum

penalty for an offence committed, the court’s discretion is hamstrung. For
example where the minimum penalty is a term of imprisonment, an option of fine
cannot be imposed. See Section 23 (5) CPC, Section 382 (5) CPL and
Section 316 (5) ACJL. See also the case of DADA v BOARD OF
CUSTOMS&EXCISE (1982) 2 NCR 79 wherein the accused was convicted
under Section 44 (1) (b) of the Customs and Excise Management Act. The
punishment for the offence of unlawful importation under the subsection is 5
years imprisonment without the option of fine. The trial Judge sentenced the
accused to 2 years imprisonment. The accused appealed against the sentence
contending that he should have been given an option of fine. His appeal was
dismissed. The Court of Appeal maintained that the provisions of the CEMA
being specific provisions, override the general powers given to the Court under
Section 382 (1) of the CPA or Section 23 (1) of the CPC. It could
therefore be seen clearly in this case that the only qualification (or put simply, a
restriction) in the applicable penal section was on the part of fine, and that was
why the Judge could discretionarily reduce the sentence but couldn’t supplant the
imprisonment with an option of fine.
 Maximum Sentence: Maximum sentence differs from mandatory sentence in

that a maximum sentence is the highest punishment provided for an offence,
whereas a mandatory sentence is the ONLY sentence provided for an offence. For
instance where a statute provides that a person convicted under this section shall
be sentenced to no more than 15 years imprisonment, the court has a discretion to
sentence a convict to 14 years, 12 years or exactly 15 years but not more than 15
years.See; AMOSHIMA v THE STATE (Supra). Section 416(2)(d) ACJA
makes room for courts not to met maximum sentences on first time offenders.
NB:Section 311-314 and Sections 401 and 416 (2) ACJA make
considerable provisions the court is to take into cognizance before imposing a
sentence on a convict, including the objectives of sentencing, the interest of the
victim, the convict, the community, the availability of alternative appropriate
sanctions and the previous conviction of the convict (if any). Where a court has the
authority and discretion to impose imprisonment without the specific authority to
impose fine, the court is enjoined to impose a fine in lieu of prison terms. See;
Section 382(1) CPL, Section 2391) CPC and Section 316(1) ACJL.
The court usually in the interest of recovering proceeds of crime, mets out the
following criminal sentences;
a. Fine
b. Forfeiture
c. Restoration
d. Compensation
e. Payment of Cost.
We shall examine each of these sentences in detail below.
NB: GFI35 estimated that in 2006, developing countries lost between US$858.6 billion
and $1.06 trillion in illicit financial flows, an increase of 18.2% over 5 years (2002-
2006). It further asserted that Asia accounted for approximately 50%; Europe –
17%;MENA region and Western Hemisphere – 15%; and Sub-Saharan Africa – 3%.
Far from assuming that percentage for Africa is relatively small, the report revealed
35
Dev Kar and Joseph Spanjers,‘Illicit Financial Flows from Developing Countries: 2004-2013’,Global Financial
Technology, [December 2015], < https://gfintegrity.org/wp-content/uploads/2015/12/IFF-Update_2015-Final-
1.pdf> accessed 20 June 2024.
that Africa lost about $854 billion in illicit financial outflows from 1970-2008 –far in
excess of its development aid and that the estimated total may be as high as $1.8
trillion. The top five countries with the highest outflow were: Nigeria (89.5billion);
Egypt (70.5billion); Algeria (25.7billion); Morocco (25 billion); and South Africa
(24.9 billion)
4.2 CRIMINAL SENTENCES AIMED AT RECOVERING PROCEEDS OF

CRIME
a. Fine: This is simply the payment of money as punishment by the offender. A fine
may be a punishment on its own or may be in addition to another punishment. Every
court with the jurisdiction to impose a sentence of imprisonment has the jurisdiction
to impose a fine. On this see Section 316 ACJL, Section 382 (1) CPA and
Section 2391)CPC. This power of the court is not void of limitation however.
Fine as a sentence was judicially defined in AMOS NUHU DANIEL v. A. Y. A.

AGRO ALLIED NIGERIA LIMITED & ANOR (2022) LPELR-57961(CA) per
TUKUR ,JCA at Pp. 31-32, para. C-C, thus;
‘Fine is a pecuniary punishment.
This can be in addition to imprisonment or independent of imprisonment, depending

on the provision of the law. If the amount to be paid by the convict is not stated by the
law creating the offence, the amount to be paid would be at the discretion of the
Court, subject to that Court's general financial jurisdiction. From the facts and records
of this appeal, there is no doubt that the Magistrate Court was eminently empowered
to award fine by virtue of Section 309 of the Penal Code.
The discretion to award fine was however circumscribed by its monetary jurisdiction,
which according to the law on criminal procedure applicable at the time the matter
was heard was limited to N3,000.00.
The implication of the foregoing is that the Magistrate Court improperly exercised its
discretion on the issue of award of fine and same is hereby reviewed downward by
this Court to N3,000.00 in line with the Magistrate's financial jurisdiction.
See AYOTUNDE v. STATE (2021) LPELR-53294(CA), ADEMOYE v. STATE

(2013) LPELR-20198(CA) and OGBU v. FRN (2020) LPELR-50273(CA).’
Where the statute creating an offence expressly provides for the minimum punishment
for an offence to be a term of imprisonment the court cannot impose a fine nor can the
court impose a fine where a mandatory sentence of death, imprisonment etc has been
provided for by the creating statute. Refer to Sections 382(5) CPL, Section
316(5) ACJL and Section 23(5) CPC and DADA V BOARD OF CUSTOMS &
EXCISE (Supra). See also OBINNA OKEKE v. THE FEDERAL REPUBLIC
OF NIGERIA (2022) LPELR-59295(CA) per Akinbami, JCA at P. 23, paras. C-D
thus;
‘l agree with the Respondent, that the Appellate Court cannot grant fine in lieu of
imprisonment putting into consideration S.382(1) of the Criminal Procedure Act,
and S. 316 (1) of the Administration of Criminal Justice Act, 2015’.
The court when imposing a fine must take into cognizance the ability of the convict to
pay; Section 391 CPL, Section 320 ACJL, Section 427(1) ACJA and
GOKE v POLICE (1957) WRNLR 80.
By practice where a convict is unable to pay a fine sentenced, he will be imprisoned

pending the payment of the fine; Section 390 (1) CPL, Section 75 Penal
Code, Section318(b) ACJL, Sections 422 &434 ACJA.
Fines are also recoverable in distress; Section 398 CPL, Section 327 ACJL
and 434(a) ACJA.
ACJA also allows the instalmental payment of fine; Section 429 (1) ACJA.
b. Forfeiture: This sentence has been codified in the Penal Code (Section 68), and
the Criminal Code (Section 19). Forfeiture means the seizure of a convicts
property, proceeds of crime and implements used in committing the crime. It is
usually ancillary to other sentences. It is usually imposed in respect of offences and
crimes bordering on illegally acquired property and machinery used for the illegal
production of products eg currency counterfeiting machines, printers, laptops and
telephones used for cyber-fraud.
Section 19 of the Criminal Code on official corruption notes that any person
convicted for the offence may in addition to any other punishment imposed, be made
to forfeit the object of the corrupt practice to the State. Courts usually in addition to
sentences of imprisonment and fine, order that a specified sum be forfeited to the
State as well as other proceeds of crime or implements thereof. On this see ABACHA
V Federal Republic of Nigeria (2014) All FWLR (Pt. 726) 412 at 455.
Under Section 271(12)&(13) ACJA where a property, asset or money is agreed

to be forfeited under a plea bargain, such transfer or vesting of same may be done to
the victim or any person entitled to it. This provision makes room for the victim who
is usually precluded from the criminal trial process to take benefit and recover a
measure of what was lost to the crime for which the convict is being punished.
Forfeiture was giving judicial flesh in B.A. BOKINNI v. O. OLALEYE (1994)

LPELR-22960(CA), Per PATS-ACHOLONU ,JCA thus;
‘Wetsters New Universal Unabridged Dictionary defines the term forfeiture in the
following terms - "the losing of some right, privilege, estate, honour, office or
property by an offence, crime, breach of condition or other act.’
Additionally in DIEZIANI ALISON-MADUEKE v.THE ECONOMIC &

FINANCIAL CRIMES COMMISSION (2021) LPELR-56922(CA) per
Ikyegh ,JCA at Pp. 16-24, paras. E-C, Forfeiture as a sentence was explained thus;
‘All the arguments canvassed (supra) by the appellant impugning the order of interim
forfeiture of the pieces of jewellery fly in the face of the authoritative decision of the
Supreme Court in the case of DAME PATIENCE JONATHAN V. F.R.N. (2019)
10 NWLR (PT.1681) 533, where the Apex Court held inter alia that Section 17 of
the Advance Fee Fraud and Other Related Offences Act, 2006 provides for the power
to make an order of forfeiture without conviction for an offence; and that an order of
forfeiture under the section shall not be based on the conviction for an offence under
the Act or any other law.
The Apex Court further held that an application under Section 17(1) shall first be
made by motion ex parte for interim forfeiture order of the property concerned and the
giving of the requisite notice or publication as required in Section 17(2); and that
at the expiration of fourteen (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 Section 17(2) and (3), an application shall be made by a
motion on notice for the final forfeiture of the property concerned to the Federal
Government of Nigeria.
The Supreme Court went on to hold that in according the words in Section 17 of
the Advance Fee Fraud and Other Related Offences Act, 2006 their simple
grammatical meaning, it becomes evident that, though the High Court is empowered
to grant upon an 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 the order being made that the person against whom the order is made be
simultaneously given notice of the 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.
The Supreme Court added that a final order of forfeiture of the property is only
possible 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; and that it tallies with reason that the interim order of forfeiture is indeed
transient and becomes effective only when it has been made final at which point in
time an owner is effectually expropriated.
The Supreme Court continued that by the clear words of Section 17 of the Advance
Fee Fraud and Other Related Offences Act, final forfeiture is ordered only after the
respondent is heard or, having been notified of the interim order of forfeiture,
neglected or failed to show cause, within the time allowed, why the sums should not
be finally forfeited to the Federal Government of Nigeria.
The Supreme Court added that Section 17 of the Advance Fee Fraud and Other
Related Offences Act, 2006 has inbuilt mechanism for the hearing of parties in that it
is prescribed in Section 17(3) of the Act that the Economic and Financial Crimes
Commission (the respondent in this appeal) should, after identifying the abandoned
properties or properties reasonably suspected to be proceeds of crime, first of all apply
ex parte to the High Court for an interim order of forfeiture so as to preserve the
properties from being dissipated.
The Supreme Court further held that Section 17 of the AFF Act also imposes a duty
on the Court granting the interim forfeiture order to direct the applicant to publish the
order and notify anyone who may be affected by the order so that the affected party
may come to the Court to show cause why the final of forfeiture should not be made.
If at the end of the hearing the application, the trial Court finds that it ought not to
grant the interim forfeiture order, the order is liable to be discharged. The Supreme
Court also held in the said case that the Advance Fee Fraud and Other Fraud Related
Offences Act was enacted in line with the convention wherein non-conviction based
forfeiture has been legalised by Section 17 of the Act and is not limited to Nigeria
alone as it follows the same pattern with Part 5 of the Proceeds of Crime Act,
2002 of the United Kingdom; and that it is not the procedure that matters but the
substance of the application and what it is intended to achieve; in that not only that,
the proviso to Section 36(5) of Constitution of the Federal Republic of Nigeria,
1999 recognizes the validity of any law which imposes the burden of proving
particular facts on a particular person.
The Supreme Court of Nigeria relied on the Supreme Court of Ireland case of
GILLIGAN V. CRIMINAL ASSETS BUREAU (2011) 1 ESC 82 to hold in the
case of JONATHAN V. FRN (supra) that the authorities lend considerable weight to
the view that in rem proceedings for the forfeiture of property, even when
accompanied by a parallel procedure for the prosecution of criminal offences arising
out of the same events are civil in nature could be taken concurrently. It was also held
by the Supreme Court in JONATHAN V. FRN(supra) at 570-572; that there was no
need to prove any crime in forfeiture of property under Section 17 of the AFF Act
as civil forfeiture is a unique remedy which rests on the legal fiction the property, not
the owner is the target therefore it does not require a conviction or even a criminal
charge against the owner as it is not a punishment nor is it for criminal purposes. See
also the Supreme Court case of LA WARI FURNITURE & BATH LTD V. F.R.N.
(2019) 9 NWLR (PT. 1677) 252 where it was held inter alia that forfeiture
proceedings under Section 17 of the AFF Act is constitutional and accords with the
principle of fair hearing. Drawing support and force from the above decisions of the
Supreme Court, the Court of Appeal held in the case of JOY OBIAGELI OTI V.
EFCC AND ANOR. (2020) 14 NWLR (PT.1743) 48, that civil forfeiture
proceedings are intended to cause the forfeiture of proceeds of unlawful activity or act
and is targeted on the property, not the person and is thus in rem proceedings, not in
personam proceedings. I think as sufficiently expressed by Kirby P., in the
Australian case of TROJA V. TROJA (1994) 33 NSWLR 269 AT 278 from New
South Wales and endorsed by Philips L. J., in the English case of DUNBAR V.
PLANT (1997) 4 ALL E.R. 289 AT 304 cited with approval by Lord Goff of
Chieveley and Jones Q.C. in their authoritative book - The Law of Restitution
(Seventh Edition) page 830 paragraph 38-002 - the rule of forfeiture is an example of
a wider principle that a person cannot benefit from property afflicted with his own
unlawful activity as a principle of public policy, not a principle of justice to produce a
fair result in all cases. 'Prima facie' means at first sight or on the first appearance or on
the face of it or so far as it can be judged from the first disclosure or at a glance vide
FELIMON ENT. LTD. V. CHAIRMAN EFCC (2018) 7 NWLR (PT.1617) 56 AT
69, so for an order of interim forfeiture of property to be made, the 1st respondent had
to satisfactorily show only prima facie evidence as defined (supra) that the property
was likely proceeds of unlawful activity or crime and may ultimately be liable to
forfeiture.
By considering and granting the ex parte application for interim forfeiture, the Court
below was taken to have agreed with the respondent that it had made a prima facie
case for forfeiture of the pieces of jewellery and that the respondent had discharged
the burden of proof under Section 17(1) of the AFF Act. The burden then shifted
to the appellant to show cause why an order of final forfeiture of the pieces of
jewellery should not be made against her under Section 17(2) of the AFF Act. The
burden of proof placed on the appellant to show cause is on the balance of probability
as the fact of how she came into possession of the pieces of jewellery (supra) is
specially within her knowledge thus placing the burden of proving that particular fact
upon the appellant vide Section 140 of the Evidence Act read with Section
36(5) of the 1999 Constitution to the effect that nothing in Section 36 dealing with
fair hearing shall invalidate any law by reason only that the law imposes upon any
such person the burden of proving particular facts. Section 17(3) and (4) of the
AFF Act empowers the application to be made ex parte which is the form of
commencement of the proceedings stipulated by the AFF Act 2006 and being the
particular mode prescribed by statute the respondent was entitled to commence the
proceedings by an ex parte application.
Section 17(4) thereof lays down the step to take after the ex parte order of interim
forfeiture is made for the making of the final order of forfeiture. Section 17(6) of
the AFF Act, also, emphasizes that an order of forfeiture under this Section shall not
necessarily be based on a conviction for an offence under the Act or any other law.’
c. Restitution: This is also referred to as restitutional damages in older statutes such

as the PC and CPL. Provided for in Section 68 (1) (d) of the Penal Code,
Section 270 CPL, restitution means the forfeiture of gains/profit made unlawfully
by the convict to the victim or the State as the case maybe and the court imposes. This
sentence is majorly used by the Economic and Financial Crimes Commission for Plea
bargain agreements with cyber fraud convicts, money laundering convicts and other
financial offences. Restitution is made by the convict to the EFCC account (on behalf
of the State) after which a plea bargain agreement for a fine as opposed to
imprisonment upon the conduction of a full trial is entered into.
The Administration of Criminal Justice Act, 2015 is rift with very instrumental
provisions with regards to restitution; Section 270 (2)(b)ACJA, Section
270(5) (ix)ACJA, Section (6) (b)ACJA, Section 321ACJA (Power of Court to
order restitution), Section 341ACJA, Section 342 ACJA, Section
401(g)ACJA, and Section 454 (4)ACJA on non-custodial sentencing alternatives.
Section 295 of the Administration of Criminal Justice (Repeal and Enactment)

Law, 2015 makes provision for “payment to innocent person of money found on
defendant”.
Section 296 Administration of Criminal Justice (Repeal and Enactment) Law;

Restitution and disposition of property found on a person arrested.
Section 297 Administration of Criminal Justice (Repeal and Enactment) Law;

Restitution of property stolen.
Restitution is majorly aimed at restoring the victim to a state close to what was
obtainable afore the crime was committed by the convict. It is also aimed at making
the convict return any profit obtained from the crime he/she is being punished for.
The case of SAHEED RAJI v. THE STATE (2012) LPELR-7968(CA) is quite

exemplary on the award of restitution as a punitive sentence; In delivering the Lead
judgment, OGBUINYA ,JCA at Pp. 75-80, para. F-F adjudged thus;
“...That takes me to a consideration of issue three. The fulcrum of the appellant's

complaint on the issue is that the lower Court was wrong to have ordered the
appellant to return the gold in question or its monetary value of N827,270.00 to the
PW1.
The Lower Court predicated the order on the provision of Section 11 of the
Advance Fee Fraud and Other Fraud Related Offences Act, Cap. A6, Laws of the
Federation of Nigeria, 2004. It follows that the said provision of Section 11 of the
Act is pivotal in the determination of this issue. In this wise, I will reproduce it,
Verbatim ac litteratim, thus:
‘11. Restitution
(1) In addition to any other penalty prescribed under this Act, the
High Court shall order a person convicted of an offence under this
Act to make restitution to the victim of the false pretence or fraud
by directing that person -
(a) Where the property involved is money, to pay to the victim an

amount equivalent to the loss sustained by the victim;
(b) In any other case -
(i) to return the property to the victim or the person designated by

him; or
(ii) to pay an amount equal to the value of the property, where the
return of the property is impossible or impracticable.
(2) An order of restitution may be enforced by the victim or by the

prosecutor on behalf of the victim in the same manner as a
judgment in a civil action.’
After the plea of allocutus, made by the appellant's counsel, the lower Court, on page
120B of the record, ordered as follows: "By the provisions of Section 1(3) of the
Advance Fee Fraud and Other Fraud Related Offence Act which convict is convicted
the minimum sentence that can be imposed is ten (10) years imprisonment without an
option of fine. Because the convict has no record of previous (sic) I hereby sentence
him to a prison term of ten (10) years without an option of fine. In addition, I act
under the provision of Section 11 of the Act and order the convict to return to
Isiaka Yusuf who testified as PW1, the quantity of gold jewelries which he took from
him or pay the money worth of the said quantity of gold jewelries valued
N827,270.00. The convict has 30 days from today to appeal both conviction and
sentence."
A resolution of this issue is zeroed in on the interpretation of the provision of

Section 11 of the Act vis-a-vis the second limb of the order, restitution, decreed by
the lower Court.
To begin with, the provision is clear as it is unambiguous. To this effect, it is the

ageless literal rule of interpretation that will be employed in construing it. Where the
Words of a statute are clear, precise, unambiguous, the law mandates the Court to
give such words, their ordinary and literal meaning without any interpolation as there
is nothing to interpret.
The rationale behind this is simple. The cardinal function of the Courts or Judex is
jus dicere, not jus dare, id" est, to declare the law and not to make one, See
TANKO VS. STATE (2009) 4 NWLR (PT.1131) 430; AMOSHIMA VS. STATE
(2011) 4 NWLR (PT.1268) 530.
An intimate reading of the prescription of Section 11 of the Act clearly shows, to

my mind, that it has donated extra plenitude of power to the lower Court to make
order for restitution, an act of giving back to a person something that was lost or
stolen, or of paying him money for the loss, apart from any other punishment or
penalty it may have imposed on a convict, see Black's Law Dictionary, Eighth
Edition, page 1339.
I have situated the said provision with the order of restitution made by the lower
Court. It seems clear to me that the order is, wholly, in accord with the additional
power allotted to it by the provision. In other words, the order fits squarely into the
ambit of the provision. I am on the same wavelength with the respondent's contention
that the lower Court had no modicum of discretion in the matter because the provision
deployed the word, "shall" which, in the eyes of the law, imports compulsion and
mandatory obligations. The word, shall, a modal verb, is a word of command which
no Court will disobey its order. Besides, where a legislation, such as the said Act,
prescribes a method of doing something, that mode, and none other, must be adopted
otherwise the expected function will be deemed unaccomplished, see TANKO VS.
STATE (SUPRA); AMOSHIMA VS. STATE (SUPRA).
The appellant, stoutly, argued that the relief of restitution, granted, by dint of the
provision, was not claimed so that the lower Court lacked the vires to award it. What I
have highlighted or x-rayed above takes adequate care of that sterling submission. Let
me add, apace, that the contention, elegant as it appears, would have been more
appropriate in the domain of civil proceedings where claims are made in the
originating process or statement of claim. Ditto for the appellant's argument that the
sum of N827,270.00 is a special damage that must be awarded upon strict proof.
Moreover, the principle of law that a Court, not being a santa claus, cannot dish out
unsolicited claims to parties is, perhaps, unknown to the appellant, is riddle with
exceptions. One of such qualifications, that is germane here, is that a Court is vested
with the jurisdiction to grant an unclaimed, relief suo motu when it is provided in an
enactment. What the lower Court did is a quintessence of this exception to unclaimed
relief in adjudication. I have no reasons to fault it.
To further deflate or puncture the appellant's contention on unclaimed relief, I must

observe, quickly, that, the criminal jurisdiction of a Court is determined by
comparison of the relief with the law. This view point is solidified by the case of
ONWUDIWE VS. FRN (2006) 10 NWLR (PT. 988) 982 AT 425 wherein Tobi,
JSC, opined: "Let me first take the issue of jurisdiction vehemently canvassed by
learned counsel for the appellant. In criminal law and administration of criminal
justice, the determination of jurisdiction will be taken in the light of the enabling law
setting out the jurisdiction of the Court vis-a-vis the charge preferred against the
accused. In other words, in order to have jurisdiction, the Court must be satisfied that
the offence or crime is directly donated by the jurisdiction conferred on the Court in
the enabling law. Where the offence or crime is outside, the enabling law, the Court
cannot exercise jurisdiction because it lacks the jurisdiction to do so."
Taking into account these highlights, I am of the firm view that the lower Court did
not offend the law when it made the order for restitution against the appellant.
For a good - measure, the restitution order is, completely, in keeping with the remedy
for the perennial mischief which the foul crime of obtaining property by false
pretences had, hitherto, occasioned in our fragile Nigerian society. It is disturbing and
disheartening that this heinous offence has become endemic in our Nigeria polity.
This rampant and menacing crime has unleashed dire consequences on the integrity
and image of Nigerians and Nigeria globally. It is has made Nigeria to be a Pariah and
blacklisted State among the comity of nations. Exultantly, even though the
punishment for the ravaging crime may appear harsh and draconian for any offender,
conviction without option of fine and restitution, it is commendable so that it will
deter others as well as cleanse Nigeria before the international community.
Overall, I resolve the issue three against the appellant." Per OGBUINYA ,JCA (Pp.
75-80, para. F-F)
See also MR.UGO ANYANWU v. FEDERAL REPUBLIC OF

NIGERIA&ANOR (2022) LPELR-58460(CA) Per Bada, JCA at P. 97, paras. A-D;
“The law on Restitution is Section 297(1) of the Administration of Criminal

Justice Law of Lagos State and it states as follows:-
‘Where any person has been convicted of having stolen or having received stolen
property, the Court convicting him may order that such property or part of it be
restored to the person who appear to be the owner ....’
The Appellant in this case was convicted for conspiracy and stealing. The order was
made against the Appellant and 2nd Respondent in their joint and several capacities.
The trial Court was therefore right to have made the order of restitution against the
Appellant.”
d. Compensation: Under our criminal statutes, substantive and procedural, there is
the possibility to receive compensation by a victim of crime and the obligation to pay
compensation by a person who is convicted of an offence 36. Section 365 (1)(b)
Criminal Procedure Code, Section 78 Penal Code, Section 319-325ACJA
cover compensation succinctly.
Section 365 (1)(b) CPC reads as follows;
365 (1) Whenever under any law in force for the time being a criminal court imposes
a fine, the court may, when passing judgment, order that in addition to a fine a
convicted person shall pay a sum-
(b)in compensation in whole or in part for the injury caused by the offence
committed, where substantial compensation is in the opinion of the court recoverable
by civil suit;
The Administration of Criminal Justice Act 2015 on its part in Section 319 (1) (a)
provides as follows with regards to compensation being paid by the convict to the
victim;
319 (1) A court may, within the proceedings or while passing judgment, order the
defendant or convict to pay a sum of money:
(a) as compensation to any person injured by the offence, irrespective of any other
fine or other punishment that may be imposed or that is imposed on the defendant or
convict, where substantial compensation is in the opinion of the court recoverable by
civil suit;
Wambai , JCA in CHIEF GARDEN GBENEYEI & ANOR v. NIGERIA AGIP

OIL COMPANY LTD & ORS (2023) LPELR-61587(CA) at Pp. 22-23, paras. F-B
provided a watertight definition for compensation as a sentence thus; ‘The word
36
Dr.J.A Agaba, ‘Practical Approach to Criminal Litigation in Nigeria’, 3rd Edition, Renaissance Law Publishers Ltd,
ISBN: 978-978-962-484-3, P.879.
"compensation" includes payment of damages or any other act that the Court orders to
be paid by a person who has caused injury to another. See Black's Law Dictionary,
8th Edition by Bryan A. Garner at page 301-302 as adopted by this Court in the case
of NWANKWO V OKEREKE (2013) LPELR-21952 (CA)’.
Additionally, Bashir, JCA in MRS. TARDOO JAHMED & ANOR v. HON.

MINISTER FEDERAL CAPITAL TERRITORY & ANOR (2022) LPELR-
58860(CA) at P. 16, paras. D-F enunciating on the aim of a sentence of compensation
noted; ‘It has been held by this Court in ENTERPRISES BANK LTD V. AKADIRI
(2018) LPELR 44332 that: "The purpose of compensation is to compensate the
victim of a tort for the injury he has suffered, and it seeks to put him as far as possible
in the position he would have been had the tort not been committed. ANUMBA V.
SHOLET (1965) 2 ALL NLR P9 183.’
e. Payment of Cost: This order has been provided for in Section 255 CPL, Section
365 (1)(a)CPC and Section 319 ACJA. Section 319 ACJA provides as follows:
(1) A court may, within the proceedings or while passing judgment, order the
defendant or convict to pay a sum of money:
(a) as compensation to any person injured by the offence, irrespective of

any other fine or other punishment that may be imposed or that is
imposed on the defendant or convict, where substantial compensation is
in the opinion of the court recoverable by civil suit;
(b) in compensating a bona fide purchaser for value without notice of the
defect of the title in any property in respect of which the offence was
committed and has been compelled to give it up; and
(c) in defraying expenses incurred on medical treatment of a victim injured

by the convict in connection with the offence.
(2) Where the fine referred to in subsection (1) of this section is imposed in a case
which is subject to appeal, no payment additional to the fine shall be made before the
period allowed for presenting the appeal has elapsed or, where an appeal is presented,
before the decision on the appeal
(3) Order for cost or compensation may be made under this section irrespective of the
fact that no fine has been imposed on the defendant in the judgment.
Section 319 (3) ACJA should be noted in particular in that orders for cost and
compensation can be imposed on convicts whether or not a sentence of fine has been
imposed in the judgement or not.
Affen JCA in MRS. EBELECHUKWU ANYAEGUNAM v. MR. CHIJIOKE

IGWENDU & ORS (2023) LPELR-60803(CA) at Pp. 30-32, paras. D-C on
awarding costs noted as follows; ‘Now, "costs" are expenses incurred in prosecuting
or defending a lawsuit. The object of the award of costs is to compensate the
successful party for some of the expenses incurred in litigation [see HACO LTD v
BROWN (1973) 2 SC 14 and REGD. TRUSTEES OF IFELOJU v KUKU [1991]
5 NWLR (PT 189) 65] but quite unlike the award of damages, there is as to costs no
restitutio in integrum. See MBANUGO v NZEFILI (1998) LPELR-5483(CA).
Fundamentally, costs follow events and are matters within the discretion of the trial
judge. OJIEGBE & ANOR v UBANI & ANOR (1961) 1 ALL NLR 277, HACO
LTD v S. M. DAPS BROWN (1973) 4 SC 149, AKINBOBOLA v PLISSON
FISKO NIG LTD [1991] 1 NWLR (PT. 167) 270, N. B. C. I. v ALFIJIR
(MINING) NIG. LTD [1999] 14 NWLR (PT 638) 179 and NNPC v KLIFCO
(NIG) LTD [2011] 10 NWLR (PT 1255) 209.
The principles to be observed in fixing costs are set out in Order 50 of the
Anambra State (Civil Procedure) Rules, 2019 as follows:
"Costs
1(1) In fixing the amount of costs, the principle to be observed is that the party who is
in the is be indemnified for the purposes for the expenses to which he has been
necessarily put in the proceedings, as well as compensated for his time and effort in
coming to Court. Such expenses shall include:
(a) the cost of legal representation and assistance of the successful party to the extent
that the Judge determines that the amount of such cost is reasonable.
(b) the travel and other expenses of parties and witnesses to the extent that the Judge
determines the amount of such expenses is reasonable, and such other expenses that
the Judge determines ought to be recovered, having regard to the circumstances of the
case.
(2) When costs are ordered to be paid, the amount of such costs shall, if practicable,
be summarily determined by the Judge at the time of delivering the judgment or
making the order.
(3) When the Judge deems it to be impracticable to determine summarily the amount
of any costs which he has adjudged or ordered to be paid, all questions relating thereto
shall be referred by the Judge to a Taxing Officer for taxation.’
See also ALHAJI KAMBA v. MABEL NDAGI & ORS (2020) LPELR-
50245(CA) and DANA AIRLINES LIMITED v. MRS. GRACE EVENTUS
MBONG & ORS (2022) LPELR-58028(CA).
5. HIGHLIGHTS OF THE PROCEEDS OF CRIME (RECOVERY

AND MANAGEMENT) ACT, 2022 ON RECOVERY OF
PROCEEDS OF CRIME
The commencement section of this avant-garde legislation reads thus explanatorily;

“An act to make comprehensive provisions for seizure.
confiscation, forfeiture and management of properties
reasonably suspected to have been derived from unlawful
activities; and for related matters”.
The objectives of this legislation are produced in Section 1(1)(a)-(g) PCRA thus;
1 (1) The objectives of this Act are to—
(a) provide for an effective legal and institutional framework for the
recovery and management of the proceeds of crime, benefits derived therein,
instrumentality of unlawful activities, and unclaimed properties reasonably
suspected to be proceeds of crime;
(b) make provisions for the restraint, seizure, confiscation and forfeiture
of property derived from unlawful activities and any instrumentalities used
or intended to be used in the commission of such unlawful activities ;
(c) make provisions for non-conviction based procedure for the recovery
of proceeds of crime ;
(d) strengthen the criminal confiscation procedure by ensuring that the

total benefit from a person’s criminal activity is calculated and an equivalent
amount, where recoverable, is confiscated on behalf of the Federal
Government ;
(e) ensure that the relevant organisations establish the Proceeds of Crime
(Management) Directorate to carry out the functions conferred on it under
this Act ;
(f ) strengthen collaboration among the relevant organisations in tracing

and forfeiting properties reasonably suspected to be proceeds of unlawful
activity through non-conviction based forfeiture proceedings ; and
(g) make provisions for the handover, management and disposal of
properties forfeited to the Federal Republic of Nigeria.
Section 1(1)(c) makes provision for “Non-conviction based” procedure for the
recovery of the proceeds of crime. This is innovatively beneficial to the criminal
justice system in Nigeria as it conserved judicial time and allows enforcement
agencies take possession of proceeds of crime pending the final verdict after trial
(non-conviction based procedure for recovery) .
Section 1(2) PCRA sets out the application of the Act and its scope of operation.
2. The provisions of this Act apply to—
(a) detection, identification, investigation, and recovery of realizable

assets and the proceeds and instrumentalities of unlawful activity by relevant
organizations ;
(b) orders and directives by the Court to support the detection, recovery
and preservation of the proceeds and instrumentalities of unlawful activity
and realizable properties by relevant organizations;
(c) confiscation orders to recover a sum equivalent to the amount a

convicted person has acquired from the offences charged and related
offences, including accrued benefits ;
(d) management of the recovered assets and property by the relevant

organization under this Act ; and
(e) training and certification of asset recovery officers, asset recovery

agents, auctioneers, bankers, consultants and judicial officers.
The Act establishes a Proceeds of Crime Management Directorate saddled with the
following duties and responsibilities in Section 3 thus;
3. The relevant organization shall—
(a) enforce and administer the provisions of this Act ;
(b)establish Proceeds of Crime (Management) Directorate which shall—
(i) take over and assume responsibility for the proper and effective management of
properties forfeited to the Federal Government of Nigeria,
(ii) set standards to be applied in the handling of properties forfeited to the Federal
Government of Nigeria,
(iii) ensure accountability in the management of all properties forfeited to the Federal
(iv) ensure the effective administration of properties forfeited to the Federal

(v) recommend training on the management of the proceeds of crime and related
matters, and
(vi) appoint private asset managers and ensure that the assets managers are properly
bonded and insured ;
(c) establish and maintain—
(i) assets management and disposal systems, and
(ii) lists of approved auctioneers and valuers, and issue instructions for the realization
or security of assets whilst ensuring fair process ;
(d) establish and maintain a central database of —

(i) all seized and recovered assets by the relevant organization, and
(ii) asset managers, auctioneers, insurers, and other necessary support services ;
(e) work with the Federal Ministry of Justice to negotiate the return and management
of all assets seized from foreign countries on behalf of the Federal or State
Governments, or any other victim or for the benefit of Nigerians ;
(f ) maintain statistics as to amounts recovered and managed ;
(g) collaborate with other government bodies outside Nigeria that are
carrying on functions, wholly or in part similar to it ;
(h) maintain an accurate inventory of all assets, with records of their

location, value, condition, and description of their status in relation to any
proceedings before the Court ;
(i) recommend reparations to victims of crime, where proceeds have

been recovered ; and
(j) carry out such other necessary or expedient functions as may be

assigned to it by the head of the relevant organisation to ensure the efficient
performance of its functions under this Act
Section 3(e) and 3(i) PCRM makes room for the benefit of victims and Nigerians
and the recommendation of reparations to victims of crime where proceeds have been
recovered; a novative step in our criminal justice system which prior has been focused
on merely punishing the criminal as opposed to compensating the victim(s).
The powers of the organization are contained in Section 4 (a) to (c) PCRM Act,
2022.
The role of the Directorate in the process of management of forfeited properties is
codified in Section 5 of the Proceeds of Crime (Recovery and Management) Act,
2022.
Section 6(1) of the Act provides as follows as pertains to the relationship of the
Directorate with other security agencies and organizations;
(1) - In the performance of their functions and exercise of their powers under this Act,
the relevant organization shall cooperate with other relevant entities.
Section 6(2) on relevant entities explains as follows;
(2) - In this section, “other relevant entities” includes any other institution or authority
not listed as relevant organisation
Part IV of the Act covers extensively and instrumentally; Non–conviction based

recovery of the proceeds of crime.
Section 7 notes that this Part applies to the recovery and forfeiture of proceeds of
crime, instrumentality of unlawful activity, abandoned properties or unclaimed
properties reasonably suspected to be proceeds of unlawful activity, without
conviction.
Section 8 provides for the nature of proceedings as well as the evidentiary burden
of proof thus;
(1) Subject to the provisions of this Act—
(a) proceedings under this Part shall be civil proceedings ; and
(b )the standard of proof required in proceedings under this Part shall be on a balance
of probabilities
(2) The rules or practice relating to hearsay evidence, given in furtherance of the
proceeding is admissible.
The following Non-conviction based recovery of proceeds of crime orders have been
provided for under this part;
(a) Preservation order

(b) Forfeiture order
(a) Preservation Order
This is covered in Section 9 PCRM Act thus;
9.— (1) A preservation order shall be granted by the Court to preserve

property reasonably suspected to have been derived from unlawful activities
and represents instrumentality of unlawful activity or unclaimed property.
(2) The relevant organization may, by an ex-parte application, apply to

the Court for a preservation order restraining a person from dealing in any
manner with any property, subject to such conditions and exceptions as may
be specified in the order.
The circumstances under which a court shall grant a preservation order are contained
in Section 9 (3) PCRM Act thus;
(3) The Court shall make an order under subsection (2), where there are reasonable
grounds to believe that the property concerned—
(a) represents the proceeds of unlawful activity, whether they are—

(i) in the hands of the person who unlawfully acquired the property in the first
instance, or
(ii) traced to any person to whom the property that represents the proceeds have been
passed ;
(b) is involved in the facilitation of unlawful activity ; or
(c) is intended to be used to facilitate unlawful activity
Section 9 (4) to (8) cover further property purchased by proceeds of crime as well
as ancillary orders the court can make alongside preservation orders.
Section 10 provides for 14 days notice to be given to interested parties in property

which might be subject of a preservation order.
10—(1) The Court in making a preservation order, may direct the relevant
organization to within 14 days after the making of the order notify any interested
party of the preservation order by publishing same in any widely circulating national
newspaper.
(2)A person, who has an interest in any property that is subject to a preservation order
may give notice of his intention to;
(a) oppose the making of the preservation order ; or
(b) apply for an order excluding his interest in the property concerned
from the operation of the preservation order.
(3) A notice under subsection (2) shall be filed and served on the relevant
organization within 14 days of the publication of preservation order.
Section 10 (4) provides for the necessary details to be furnished in the application
by an interested party thus;
(4) A notice given under subsection (2) shall contain full particulars of the address for
the service of documents concerning further proceedings under this Part, and shall be
accompanied by an affidavit stating the—
(a) full particulars of the identity of a person entering appearance ;
(b) nature and extent of his interest in the property concerned ; and
(c) reasons which the person intends to rely on in opposing the preservation order or
applying for the exclusion of his interest from the operation of the preservation order.
Section 11 provides the duration of subsistence of a preservation order, pegging it

at 60 days subject to renewal. The section provides thus;
11. A preservation order shall, subject to section 24 of this Act, expire 60 days after
the date on which it was made, unless—
(a) there is an application for a forfeiture order pending before the Court in respect of
the property subject to the preservation order ;
(b) there is an unsatisfied forfeiture order in force, in relation to the property subject
to the preservation order ; or
(c) the preservation order is rescinded before the expiration of that period.
Preservation orders can be renewed as provided for in Section 12 thus;
12-(1) The relevant organization may apply to the Court that granted a preservation
order under this Act for a renewal of the order, where—
(a) the preservation order has not been set aside ; and
(b) there are reasonable grounds to grant the renewal.
(2) The cumulative period of renewals shall not exceed 180 days.
Disposal of property subject to preservation order is provided for in Section 13

thus;
13—(1) Where there are reasonable grounds to believe that a property, which is
subject to a preservation order, may have its value diminished, or be disposed of,
destroyed, or damaged, removed contrary to the order or may deteriorate in terms of
quality or utility, the relevant organization shall promptly apply to the Court ex-parte
for an order to sell the property at the prevailing market value.
(2)The proceeds from the sale of any property under subsection (1) shall be invested
in the Central Bank of Nigeria treasury bills, pending the determination of the
proceedings.
(3) Where a preservation order is set aside or the sales revoked by

order of Court, the relevant organization shall, after exercising its right of
appeal, pay to the owner of the property the proceeds of sales together with
accrued interest where applicable.
Where the court has made a preservation order it will appoint an asset manager
subject to Section 14 PCRM Act 2022.
The duties and scope of powers of an asset manager appointed in Section 14 (1)
are contained in Section 14 (1)(a)(i) to (v) PCRM Act 2022.
Where immovable property is the subject of a preservation order, the court may direct
the appropriate land registration authority to place a restriction on the land register in
respect of the immovable chattel. This is covered in Section 15 (2), (3), (4), and
(5) PCRM Act, 2022.
Preservation orders may be rescinded or varied upon application by the affected party;
Section 16 (a) and (b) PCRM Act, 2022.
Preservation orders and forfeiture orders can run concurrently. On this see Section
17 PCRM Act, 2022 thus;
17.—(1) Where a preservation order is in force and before the expiration of the
stipulated time, the relevant organization may apply to the Court by way of motion of
notice for a forfeiture order against all or any part of the property that is subject to the
preservation order.
(2)The relevant organization shall give 14 days notice of an application under

subsection (1) to every person who pursuant to the notice given under section 10 (1)
of this Act had shown interest in the property sought to be forfeited.
(3) A person who pursuant to the notice given under section 10 (1) of this Act may,
subject to compliance with section 10(2) and (3), appear at the hearing of the
application under subsection (1) to —
(a) oppose the making of the order ; or
(b) apply for an order—
(i) excluding his interest in the property from the operation of the order, or
(ii) varying the operation of the order in respect of the property, and may adduce
evidence at the hearing of the application.
(4) Where the Court grants the forfeiture order, the property referred to in subsection
(1) shall be forfeited to the Federal Government of Nigeria.
Section 18(1)-(5) PCRM Act, 2022 covers Service of notice out of time.
Section 18 (1) provides thus; Where a person for any reason, failed to serve notice
under section 10 (2) of this Act, he may apply to the Court for leave to serve the
notice out of time.
(b)Forfeiture Order:
Forfeiture orders as non-conviction based recovery of proceeds of crime has been
provided in Section 19 PCRM Act, 2022 thus;
19—(1) Subject to section 22 of this Act, the Court shall make a forfeiture order
under this Act where it finds on a balance of probabilities that the property concerned
is reasonably suspected to—
(a) be proceeds of unlawful activity ;
(b) represent whether directly or indirectly the proceeds of unlawful activity ;
(c) be involved in the facilitation of unlawful activity ; or

(d) be intentionally used for unlawful activity.
(2)The Court may—
(a) where it makes a forfeiture order, or
(b) at any time after making the order, make any ancillary order that it considers
appropriate, including orders for and with respect to facilitating the transfer of
property forfeited to the relevant organisation, on behalf of the Federal Government
of Nigeria.
(3)The absence of a person whose interest in property may be affected by a forfeiture

order shall not prevent the Court from making the order.
(4) The validity of an order under subsection (1) shall not be affected by the outcome
of criminal proceedings or of an investigation with a view to instituting those
proceedings, in respect of an offence with which the property concerned may be
associated.
Section 20 covers the effect of appeals on preservation or other ancillary orders.
Section 21 covers the effect of a forfeiture order pursuant to section 19.

Section 22 deals with the fulfillment (execution) of a forfeiture order by the
relevant organization or the Directorate.
Multiple preservation and forfeiture orders can be made against a singular property
being a proceed of crime pursuant to Section 23 PCRM Act, 2022.
Where a deceased persons estate forms part of property subject to a preservation or

forfeiture order, a notice authorized or required to be given to a person under this Part
shall, in the case of a deceased person, shall be sufficiently given to the administrator
or executor of the deceased person’s estate, or to a person acting in that capacity
pursuant to Section 24 (1) PCRM Act, 2022.
The effect of death of a joint owner of property under a preservation order is covered
in Section 25 PCRM Act, 2022.
Part V of the Proceeds of Crime (Recovery and Management) Act, 2022 covers
recovery of cash, this also being a proceed of crime if not the most common proceed
of crime.
Section 26 covers the seizure and detention of cash and provides as follows;
26.—(1) A designated officer may seize and detain any cash in the process of being
moved within or outside Nigeria, where he has reasonable grounds to suspect that it—
(a) directly or indirectly represents proceeds of unlawful activity or is intended to be

an instrumentality of an offence ; or
(b) is above the prescribed amount under the law and has not be declared to the
appropriate authorities.
(2) In this Part—

(a) “cash” includes—
(i) notes and coins in any currency,
(ii) cheques of any kind, including travelers’ cheques,
(iii) bankers’ draft,
(iv) bearer bonds and bearer shares, and
(v) jewelries and gold, and
(b)“designated officer” means an officer of Nigeria Customs Service, National Drug

Law Enforcement Agency, Economic and Financial Crimes Commission, Nigeria
Police Force, Nigeria Immigration Service and officers of other relevant
organizations.
(3) The “prescribed amount” in this Part, means the equivalent amount in United
States Dollar specified in the Money Laundering (Prohibition) Act, the Customs and
Excise Management Act, Foreign Exchange (Monitoring and Miscellaneous)
Provisions Act or in an order or regulations issued by the Attorney-General, in
consultation with the Central Bank of Nigeria.
It is our humble opinion that the use of the US Dollar as provided for in Section 26
(3) on the proscribed amount in the Act, within Nigeria for crimes committed within
the jurisdiction and geographical territory of Nigeria is an economic and legal
anomaly as the US Dollar is not the official currency nor exchange of Nigeria.
Cash recovered is to be detained for a period of 7 days to enable an officer of the

relevant organization that seized the cash to apply and obtain an Order to Detain Cash
from the court seised with jurisdiction to grant such orders. This is provided for in
Section 27 of the Proceeds of Crime (Recovery and Management) Act, 2022.
Section 27 (3) provides for extension of time of detention of cash by order of court
for a period of not more than 3 months from the date the order is made.
Section 27 (4) further provides for an extension for 12 months maximum for
detention of cash from the date the order is made.
Interest is to be paid on seized cash; Section 28 PCRM Act, 2022.
Section 29 PCRM Act, 2022 covers the release of cash that was detained.
Section 30 provides for application for forfeiture of cash seized or detained.
Appeals against non-conviction based recovery of proceeds of crime lies to the Court
of Appeal as provided for in Section 31 PCRM Act, 2022.
Part IV of the Act covers the confiscation of proceeds of crime. This spans from
Section 33 (Objectives of the part) to Section 52 PCRM Act, 2022.
Section 34 covers the application of Part IV.
Section 35 provides for Restraint orders for the confiscation of proceeds of crime
thus;
35. The Court may, on the application of the relevant organization, make an order that
realizable property shall not, except in the manner as may be specified in the order, be
disposed of or otherwise dealt with by any person, where—
(a) a defendant—
(i) has been convicted of an offence or has been charged with an offence and a
confiscation order has been made against the defendant, or it appears to the Court that
there are reasonable grounds for believing that a confiscation order may be made
against the defendant, or
(ii) is to be charged with an offence and the Court is satisfied that the defendant is to
be charged, and it appears to the Court that there are reasonable grounds for believing
that a confiscation order may be made against the defendant ; and
(b) an affidavit under this Act has been filed in support of the application
Purposes of a restraint order have been spelt out expressly in Section 36 (1) to (5)
PCRM Act, 2022.
Property that may be subject to a restraint order is covered in Section 37 (a) to (f)
PCRM Act, 2022.
Section 38 PCRM Act, 2022 provides thus;
38.—(1) The application for a restraint order shall be supported by an affidavit made
by the relevant organization stating the belief that the property is of a type mentioned
in section 37 of this Act.
(2)The Court shall not make a restraint order unless it is satisfied that the facts
disclosed in the affidavit support the reasonable belief expressed by the relevant
organization.
(3) The Court may request the relevant organization to provide additional information
in support of the affidavit.
Section 39 PCRM Act, 2022 makes provision on notice of restraint order being
given thus;
39.—(1) Where the Court makes a restraint order, the relevant organization where
practicable shall give notice to—
(a) all persons affected by the restraint order ; and

(b) any other person who may be affected by an order to seize any property in
furtherance of the restraint order.
(2)The notice referred to in subsection (1), where practicable shall—
(a) be served before or at the time of any seizure and in any other case after the order
is obtained ; and
(b) contain—
(i) a copy of the restraint order,
(ii) the details of the issuing Court, and
(iii) the name and address of the applicant or other person to whom inquiries
regarding the restraint order may be made.
Section 40 provides for the registration of restraint orders
Section 41 and 42 deal with the contravention of restraint orders
Section 43 covers the seizure of property covered by a restraint order.
Section 44 on Cessation of restraint orders provides as follows;
44.—(1) A restraint order, in relation to one or more offences, ceases to be in force if

—
(a) within 28 days after the —
(i) charge or all the charges that relate to the restraint order are withdrawn, or
(ii) defendant is acquitted of the offence or all the offences with which he was
charged ;
(b)the defendant’s conviction for the offence, or all the offence , of which he was
convicted are quashed;
(c) a restraint order covers property that is not realizable property including gifts
within the meaning of section 50 (3) of this Act ;
(d) the Court is satisfied that the order was obtained by material suppression or
misrepresentation of fact or by fraud; and
(e) a confiscation order relates to that offence, those offences or related criminal
activity and—
(i) the confiscation order is satisfied, or
(ii) the confiscation order is discharged.
(2) The period referred to in subsection (1) (b) shall not exceed 10 days, starting on
the day on which the restraint order is made.
(3) Restraint orders remain in force until rescinded by the Court.
Section 45 provides for the making of confiscation orders.
45.—(1) The Court may make a confiscation order requiring a person to pay to the
relevant organization for deposit into the designated account (in this Act referred to as
“the Confiscated and Forfeited Properties Account”) as provided under this Act,
an amount equal to the total proceeds of a person’s criminal activities, where available
if —
(a) the person has been convicted of an offence ;
(b) the relevant organization applies for the confiscation order ; and
(c) the Court is satisfied that the person has benefited from—
(i) that offence,
(ii) any other offence of which the person has been convicted at the same trial, and
(iii) any criminal activity which the Court finds to be sufficiently related to those
offences
(2)Where a person has been convicted of an offence and the relevant organization
fails to apply for a confiscation order under subsection (1) (b), the Court may, if it —
(a) considers that it is in the public interest to do so ; and
(b) direct the relevant organization to apply for the confiscation order.
(3)An order made under this section against the person is—
(a) an order to make a payment to the relevant organization of any amount that the
Court considers appropriate ; and
(b) in addition to any punishment that the Court may impose in respect of the offence
or offences that the person has been found guilty of.
(4) The Court may make any further orders as it may deem fit to ensure the
effectiveness and fairness of the confiscation order.
(5) The amount that the Court may order a convicted person to pay to the relevant
organization under subsection (1) shall not exceed—
(a) the value of the convicted person’s proceeds from the offences or criminal activity,
as determined by the Court, in accordance with the provisions of this Act ; or
(b) an amount, which in the Court’s opinion may be realised, if the Court is satisfied
that the amount which might be realised as contemplated under this Act is less than
the value referred to in paragraph (a) of this subsection.
(6) The Court hearing an application under this section may grant leave for extension
of time for the application to be made, if it is satisfied that it may be in the interest of
justice to allow the application.
Section 46 sets out the value of proceeds of criminal activities and sets out the
precautions to be taken by the court in measuring and weighing the value.
Section 47 stipulates amounts that may be realized.
Section 48 extensively covers realizable property.
Section 49 covers the value of property realized.
Section 50 on gifts made by a convicted person provides as follows;
50.—(1) For the purposes of this Act, a convicted person shall be deemed to have
made a gift, where he has transferred any property to any other person directly or
indirectly for a consideration, the value of which is significantly less than the value of
the consideration supplied by the convicted person.
(2)For the purposes of this Act, the gift which a convicted person is deemed to have
made shall consist of that share in the property transferred by the convicted person
that is equal to the difference between the value of that property as a whole and the
consideration received by the convicted person in return.
(3) For the purpose of this Part, “affected gift” means any gift made by the convicted
person concerned, where it was a gift of property—
(a) received by that convicted person in connection with an offence committed, or

(b)any part which directly or indirectly represented in that convicted person’s hands
property received by him in connection with an offence committed by him or any
other person, whether the gift was made before or after the commencement of this
Act.
Section 51 lays down the procedure where a person absconds or dies.
Section 52 covers the enforcement of confiscation orders.
Part VII on Investigation, search and seizure stems from Section 53 to 57 of the
Proceeds of Crime (Recovery and Management) Act, 2022.
Part VIII is the Administration section of this statute,

spelling out the powers and duties of the relevant organization in respect of property
seized in Section 58.
Preservation of seized property in Section 59.
Rights attaching to shares in Section 60.
The procedure for destroying or disposing property in Section 61.
Notice of proposed destruction to be served on interested parties per Section 62.
How proceeds from sale of property are to be disbursed is contained in Section 63.
Discharge of confiscation orders by payment into the designated account; Section

64.
Return of income generated from controlled property; Section 65.
Immunity against liability for loss; Section 66.

International forfeiture provisions are spelt out in Section 67.
Part IX makes provision for a Confiscated and Forfeited Properties Account. This
part spans from Section 68 to Section 72 of the Proceeds of Crime (Recovery
and Management) Act, 2022.
Section 68 provides for the establishment of the Confiscated and Forfeited

Properties Account thus;
68.—(1) There is established, under this Act, designated account to be known as the
Confiscated and Forfeited Properties Account to be maintained at the Central Bank of
Nigeria.
(2) The Confiscated and Forfeited Properties Account shall be managed by the head
of the relevant organisation who shall be responsible for providing reports to the
Minister of Finance.
Section 69 makes provision on payments into the Confiscated and Forfeited

Properties Account.
Payments out of the Confiscated and Forfeited Properties Account is covered in

Section 70 thus;
70.
The President may, subject to the approval by Federal Executive Council authorize
the expenditure for money in the Confiscated and Forfeited Properties Account to be
used to—
(a) permit the relevant organisation to invest in various government portfolios to

ensure that the funds can accrue interest that would be applied for the implementation
of development projects as approved by the Federal Executive Council (FEC) or the
National Assembly ;
(b) compensate any State which has suffered grave pecuniary loss on account of the
offence or conduct that gave rise to the confiscation or forfeiture order ;
(c) compensate any person who has suffered grave pecuniary loss on account of the
offence or conduct that gave rise to the confiscation or forfeiture order ;
(d) pay any foreign country or an agency under the provisions of any treaty agreement
or scheme for mutual legal assistance ;
(e) make payments under any programme approved by the President ;
(f ) make any payment necessary to satisfy Nigeria’s obligations in respect of a

registered foreign forfeiture order ;
(g)make such other payments, on behalf of the Federal Government, directed to be

made under any relevant law ; and
(h) pay, with the approval of the National Assembly, two percent allocation to the
relevant organization for the recoveries made by the relevant organization in any
given year.
Section 71 covers audit of the Confiscated and Forfeited Properties Account.
Section 72; Authorization of expenditures for approved programmes of relevant

organization.
Part X on Jurisdiction of the Proceeds of Crime (Recovery and Management) Act,

2022 covers the entirety of Section 73 thus;
73.—(1) The Federal High Court, High Court of the Federal Capital Territory, and
State High Courts (in this Act referred to as “the Court”) shall have jurisdiction to try
offences, hear, and determine proceedings arising under this Act.
(2) The Heads of Courts shall designate special Courts to hear and determine all cases
under this Act or other relevant enactments.
(3) The penalty imposed on a person who is suspected to have committed an offence
or convicted of an offence under this Act may be reduced in such manner as the Court
deems fit or following an application by the relevant organization where the person
has—
(a) before the commencement of any proceedings, made possible or facilitated the
identification of other defendants and their sponsors ;
(b) after the commencement of the proceedings, made possible or facilitated the arrest
of other defendants or recovery of other person’s proceeds of unlawful activity ; and
(c) cooperated with the relevant organization.
(4) The Court shall, notwithstanding anything to the contrary in any other enactment,
rules, or regulations, have power to adopt all legitimate measures it deems necessary
to avoid unnecessary delays and abuse in the conduct of proceedings.
Part XI provides details on legal proceedings under the Act from Section 74 to
Section 80.
Section 74 on Burden of Proof reads thus;
74. Subject to the provisions of the Act, the defendant in any proceedings under this
Act bears the burden of proving that he is the legitimate owner of the assets suspected
to be proceeds of crime or derived from unlawful activity or that the assets are of
legitimate origin and not proceeds of unlawful activity.
Stay of Proceedings and the fact that applications in this regard shall not be
entertained under the Act is provided for in Section 75 thus.
75—(1) An application for stay of proceedings, in respect of any matter brought under
this Act, shall not be entertained.
(2) The fact that criminal proceedings have been instituted or have commenced,
whether under this Act, shall not constitute a ground for stay of proceedings under
this Act.
(3) The relevant organisation has the same right of appeal, as any other person under
this section, in respect of the grant or refusal of an order under this Act.
(4) This section does not affect any other right of appeal conferred on a person under
the Constitution of the Federal Republic of Nigeria, 1999 or any other law.
Section 76 makes key provision on the publication of notice under the Act thus;
76. Where in this Act, a notice or other document is required by any provision of this
Act to be published, it is sufficient if the notice or other document is published in any
widely circulating national newspapers.
Section 77 on the relationship of the Act with relevant laws provides as follows;
77. Subject to the provisions of the Constitution of the Federal Republic of Nigeria,
1999 where a provision of this Act is inconsistent with the provisions of any relevant
law on the management of finally forfeited assets, the provisions of this Act shall
prevail.
This section notably gives the Proceeds of Crime (Recovery and Management) Act
precedence over other preceding statutes on the recovery of proceeds of crime. This is
however subject to the provisions of the Constitution of the Federal Republic of
Nigeria, 1999 as amended; The Grundnorm.
Section 78 provides for pre-action notice to be served on the relevant organization

by parties intending to commence actions under this Act.
—(1) A civil action shall not be commenced against the relevant organization before
the expiration of a period of 30 days after written notice of intention to commence the
suit shall have been served on the relevant organization by the intending plaintiff or
his agent, and the notice shall clearly and explicitly state the—
(a) cause of action ;
(b) particulars of the claim ;
(c) name and place of abode of the intending plaintiff ; and

(d) relief sought.
(2) The notice referred to in subsection (1) and any summons or other documents,
required or authorized to be served on the relevant organization as the case may be
under this Act or other enactment or law, may be served by—
(a) delivering it to the office of the relevant organization; or
(b) sending it by registered mail to the postal address of the relevant organization.
Section 79 on restriction on execution against property of the relevant organization

provides as follows;
79 In any action or suit against the relevant organization pursuant to this Act,
execution shall not be levied, or attachment process issues against the relevant
organization, unless at least 30 days’ notice of the intention to execute has been given
Section 80 provides thus on indemnity of officers of the relevant organization;

80. The Chairman, member of the Board, officers or staff of the relevant organization,
or a seconded officer from any organization or from any public office of the
Federation, shall be indemnified out of the assets of the relevant organization against
any proceedings brought against him in his official capacity, where the act
complained of is not beyond his powers.
Part XII spanning Sections 81 to 83 covers; Regulations and Guidelines; Section 81,
Interpretation Section; Section 82
Citation: Section 83.
The Act has a singular schedule containing the duration period of specified amounts
of money being proceeds of crime.
The Act came into force on the 12th day of May, 2022.
“Relevant organization” in the context of the Act and legal proceedings thereunder
means the—
(a) Economic and Financial Crimes Commission,

(b) Independent Corrupt Practices and other Related Offences
Commission,
(c) National Drug Law Enforcement Agency,
(d) National Agency for Prohibition of Trafficking in Persons,
(e) National Agency for Food and Drug Administration and Control,
(f ) Nigeria Customs Service,
(g) Nigerian Financial Intelligence Unit,
(h) Code of Conduct Bureau,
(i) Nigeria Police Force,
(j) Department of State Services
(k) Armed Forces,
(l) Standard Organization of Nigeria,
(m) Nigeria Maritime and Safety Agency,
(n) Nigeria Immigration Service,
(o) Nigeria Ports Authority,
(p) National Inland Waterways Authority,
(q) Nigerian Security and Civil Defence Corps,
(r) Federal Inland Revenue Service, and
(s) such other organizations as the Attorney-General may designate ;
CIVIL RECOVERY OF PROCEEDS OF CRIME
In civil proceedings, actions are commenced by the proper party with the locus standi
to do so at the court with jurisdiction to listen to such a party and adjudge such a
dispute meting out the appropriate sentence through its judgment at the end of
proceedings.
Parties in civil proceedings must first be persons recognized at law; Natural/living

persons or Artificial/Juristic persons; companies, registered trustees, partnerships,
business names inter alia. The age tested precedent of KNIGHT AND SEALE V
DAVE (1964), 2 All ER 307 at 309, instructively exemplifies the import of locus
standi afore a party can institute actions and claim damages (ie) recover proceeds
from civil wrongs.
In MR. SALAKO DAVE OLADAPO v. BARR. AJIBOLA KALEJAYE & ORS

(2023) LPELR-60020(CA), the meaning and nature of locus standi was enunciated
upon by Nimpar, JCA thus; “...Locus standi has been described in a plethora of cases
as, a person who has locus standi to sue in an action if he is able to show to the
satisfaction of the Court that his civil rights and obligations have been or are in danger
of being infringed. And the Court in the case of MULIMA V. BORNO STATE
HOUSING CORP. ANOR (2021) LPELR-54827 (CA) restated the meaning and
nature of locus standi in the following way: "The question is: what does locus standi
denote?
Going by judicial authorities, the term locus standi denotes the legal capacity to
institute legal proceedings in a Court of law. The fundamental aspect/feature of
locus standi is that it focuses on the party seeking to get his complaint laid before the
Court - OJUKWU V OJUKWU (2008) LPELR-2401 (SC). Locus standi was
defined by the Supreme Court in TAIWO V ADEGBORO (2011) SCM 159, 175 by
Rhodes-Vivour, J.S.C. in these terms: "Locus standi means standing to sue or
competence of a party to sue." For a fuller expression of the term, the Supreme Court
again in B.B. APUGO & SONS LTD V OHMB (2016) LPELR-40598(SC) per
Kekere-Ekun, J.S.C. 23, B-E, defined locus standi thus: "Locus standi is the legal
right of a party to an action to be heard in litigation before a Court or Tribunal.
The term connotes the legal capacity of instituting or commencing an action in a

competent Court of law or tribunal without any inhibition, obstruction or hindrance
from any person or body whatsoever. It is also the law that to have locus standi to sue,
the plaintiff must have sufficient interest in the suit, for instance, one of the factors for
determining sufficient interest is whether the party seeking redress would suffer some
injury or hardship from the litigation..." See also INAKOJU V ADELEKE (2007)
LPELR-1510(SC) 74-75, G-A, per Tobi, J.S.C.
The nature and legal concept of the term locus standi was captured in a decision of
this Court in INEC V OGBADIBO LGC (2014) LPELR 22640 (CA) 24-25, F-C,
by Ogbuinya, J.C.A. as follows: "From the etymological perspective, the cliche
expression, locus standi, traces its roots to Latin Language which means: "place of
standing". In its expounded legal form, locus standi denotes the legal right or capacity
of a person to institute an action in a Court of law when his right is trampled upon by
somebody or authority”
The locus classicus in Nigerian jurisprudence on Locus Standi is the case of

ADESANYA V THE PRESIDENT, FRN (1981) 5 SC 112; (1981) 2 NCLR 358...
standi .
Note however that parties suing “for themselves and on behalf of” a class of persons
have the locus to do so as laid down in; BURAIMO ADEGBITE V CHIEF IMAM
QUADRI B. LAWAL ASHIRU OLEOLO & ORS (1948)(12) WACA, 398, facts
being that; Under the English Rules of the Supreme Court, authority to defend in a
representative capacity proceeds from the Court, and application for such authority
may be made by either side. It was however held that; Under the Nigerian rules, while
the approval of the Court is required, the authorization is to be given by the other
persons interested to sue or defend.
Natural persons are to sue with their real names by which thay are known and not
nicknames eg Mr.Peter Segun Smith not Mr. Pee or a nickname or moniker.
Juristic persons are to be sued with the exact name as contained on their incorporation
certificate or permit. Failure to sue with the proper name will result in the suit being
struck out, whether the parties enter appearance and have a valid cause of action. See
DENNIS NJEMANZE v. SHELL BP PORT HARCOURT(1966) LPELR-
25295(SC). Note however that where a party erroneously sued/suing under a wrong
name expressly admits the name used on the originating process albeit this being
slightly different from that contained on their incorporation certificate/permit through
their pleadings (counter affidavit, statement of defence, further and better affidavit or
other relevant pleading) duly filed, the court will allow the use of the “wrong name”
so admitted by the party through pleadings and will not strike out the suit. See
MR.EMMANUEL AGBANELO v. UNION BANK OF NIGERIA LIMITED
(2000) LPELR-234(SC). In same vein, where a party is sued under a wrong name but
the identity of such a party is not in issue/has been admitted, the court is enjoined
where the party making the error applies for an amendment of pleadings to correct
such error in name, to grant such application in the interest of doing substantial justice
as opposed to focusing on the technicalities of law. See also SO SAFE TABLE
WATER TECHNOLOGIES LIMITED v.OBAFUNMILAYO AYINOLUWA &
ANOR(2013) LPELR-22034(CA) and MAERSK LINE & ANOR v. ADDIDE
INVESTMENTS LIMITED & ANOR(2002) LPELR-1811(SC).
There are four types of parties with locus subject to the facts of each given suit;
 Proper Party
 Desirable Party
 Nominal Party
 Necessary Party.
Parties with the locus to approach the court seeking reliefs for damages caused, do so
through the instrumentality of originating process which could be claims, plaints,
petitions, writs of summons, originating summons, originating motions or charges in
criminal matters. Courts however have to vested with jurisdiction to entertain matters
or their proceedings can be nullified upon appeal (even at the Supreme Court) or at
any stage of proceedings/trial by preliminary objection raised objecting to the
jurisdiction of the court; this being an objection touching the competence and legality
of the trial court to try the case. See SHELL PETROLEUM DEVELOPMENT CO
OF NIGERIA LTD V ISAIAH (2001) 11 NWLR (pt.723) at 168, particularly at
173 and 174, and MORGAN TALBORT TOM WEST v. SIMINIALAYI
FUBARA & ORS(2023) LPELR-59285(CA) per Sirajo, JCA; “...the law is that
whenever a preliminary objection is filed to the competence of a suit and jurisdiction
of the Court, the preliminary objection must first be taken and determined before the
substantive suit. This is trite, requiring no citation of judicial authorities...”.
Jurisdiction is so fundamnetal it can be raised in court by any of the parties or by the
court itself; suo moto. Where parties fail to raise an objection to jurisdiction where
there are sufficient facts ex facie on the record establishing want of jurisdiction the
court is duty bound to do so itself. See CHIEF DANIEL AWODELE OLOBA v.
ISAAC OLUBODUN AKEREJA(1988) LPELR-2583(SC). The jurisdiction of the
court is determined first by the statute creating the court which spells out its
jurisdiction, by the nature of the claim (cause of action; CHEVRON V LONESTAR
DRILLING (2001) 11 NWLR (Pt.723, ALHAJI UMARU ABBA TUKUR OFR v.
GOVERNMENT OF GONGOLA STATE (1988) LPELR-22(SC)). In GABRIEL
MADUKOLU & ORS v. JOHNSON NKEMDILIM (1962) LPELR-24023(SC) it was
held that a court is competent to adjudicate upon a case when:
a. It is properly constituted with respect to the number and qualification of its

membership.
b. The subject matter of the action is within its jurisdiction
c. The action is initiated by due process
d. Any condition precedent to the exercise of its jurisdiction has been fulfilled.
The geographical territory and the financial limit of a court also factor in when
determining its jurisdiction to entertain a matter.
Where a court is seised with jurisdiction, the parties have the locus and have been
sued/suing in their proper capacities and originating processes have been duly served
in the the proper mode and within the appropriate time, trial commences, pleadings
are exchanged, interlocutory applications are applied for where/when necessary and at
the end of trial judgment is entered. Enforcement of judgment in civil proceedings
unlike criminal proceedings is done by the parties not the court. Various judgments
are enforced in varying ways but our focus shall be on the enforcement of monetary
judgments this being the method by which proceeds of crime in most civil
proceedings are recovered. We shall focus keenly on;
a. Writ of Fieri Facias/Attachment

b. Garnishee Proceedings
c. Writ of specific delivery/ Restitution.
d. Judgment Debtor Summons
e. Writ of possession (property being proceeds of crime)
f. Order of Cost.
Note that not every judgment requires enforcement. Sometimes all a litigant needs is
the judgment itself or an order of court eg a declaratory order. A declaratory order
does not require enforcement, since all it needs is that such an order merely declares
the rights of the parties in the matter. See ARAGBIJI OF IRAGBIJI OBA
RASHEED AYOTUNDE OLABOMI &ANOR v. OLABODE OYEWINLE
&ORS (2013) LPELR-20969(SC) wherein the Supreme Court defined a declaratory
judgment thus; A Declaratory judgment or order is one that proclaims or declares the
existence of a legal relationship, but does not contain any order which may be
enforced against the defendant. Once rights declared in a declaratory judgment are
infringed fresh proceedings are needed for enforcement. Declaratory judgments
cannot be enforced by execution, as there is nothing to enforce. So, where a court
delivers a declaratory judgment, the party appealing may be granted an injunction if
he deserves it but never a stay of execution, pending the determination of the appeal.
See also; SHODEINDE V. THE REGISTERED TRUSTEES OF AHMADIYA
ISLAMIC MOVEMENT – IN – ISLAM 1980 1-3 SC PG 163.
Interlocutory orders in addition also need no enforcement, for the reason that, at that
stage, the rights of parties are yet to be finally disposed of or determined. However, in
some cases an interlocutory order which terminates part of a case can be enforced
while the rest of the case goes on 37. See AFUWAPE V. SHODIPE 2 FSC 62 @ 64
(1957) and TOMAS (NIG) LTD. V. MINISTER OF WORKS AND HOUSING
(2001) 10 NWLR (Pt. 721), 287 @ 294.
Executory judgments are judgments which declare the respective rights of the parties
and then proceed to order the defendant to act in a particular way or restrain from so
acting. These judgments are by nature enforceable immediately. Executory judgments
are mandatory with its wordings directing the performance of a specific action. See;
OSHO V. A.G EKITI STATE (2001) 46 W.R.N 22 @ 42. It is not merely
interpretative or expository. It implies an emphatic directive or order. See; CHIEF
EKE KALU IDIKA & ORS v. OBASI IBEM OFFIA & ORS (2017) LPELR-
42280(CA).
ENFORCEMENT OF MONETARY JUDGMENTS
a. Writ of Fieri Facias/Attachment:
This writ for execution of judgment is issued for the attachment and sale of either the
movable or immovable property of a Judgement debtor (from hereon after referred to
as JD) or a Garnishee under Garnishee proceedings.
A writ of Fi-fa is issued by the court registrar upon the application of the Judgment
creditor (from hereon referred to as JC). It is utilized in the levying of execution
against both movable and immovable chattel belonging to the JD.
37
The Federal High Court, ‘Enforcement of court orders and judgment’, FHC, <
https://www.fcthighcourt.gov.ng/download/ENFORCEMENT-OF-JUDGMENTS-AND-COURT-ORDERS-4.pdf>
Note that leave of court is not required when levying execution against the movable
property of a JD. Leave of court must however be sought through application and
obtained through an order of court levying execution against immovable chattel of the
JD. See the ruling of Abundaga, JCA in MRS. DEBORAH IYINOMEN v. MR.
SAMUEL OGBEMUDIA(2022) LPELR-58251(CA) on the conditions that must be
satisfied by a judgment creditor seeking an order to levy execution on the immoveable
property of a judgment debtor thus; “...Now the application was brought under
Section 44 of the Sheriffs and Civil Process Act, which provides thus:
44. If sufficient movable property of the judgment debtor can be found in the Federal
Capital Territory, Abuja or the State, as the case may be, to satisfy the judgment and
costs and cost of execution, execution shall not issue against his immovable property,
but if no movable property of the judgment debtor can with reasonable diligence be
found, or if such property is insufficient to satisfy the judgment and costs and the
costs of execution, and the judgment debtor is the owner of any immovable property,
the judgment creditor may apply to the Court for a writ of execution against the
immovable property of the judgment debtor, and execution may issue from the Court
against the immovable property of the judgment debtor in accordance with the
provisions of this Act, and any rules made thereunder: Provided that where the
judgment has been obtained in a magistrate's Court execution shall not issue out of the
magistrate's Court against the immovable property but shall issue out of the High
Court upon the conditions and in the manner prescribed.
Section 44 of the Sheriffs and Civil Process Act, as can be seen, prescribes
conditions that must be met before leave can be granted to attach the immovable
property of a judgment debtor. If the wordings of the Section is properly appreciated,
it can be seen that generally, execution shall not be levied against the immovable
property of judgment debtor. The right to do so avails by way of exception rather than
the rule.
And it is this exception that metamorphoses to a condition precedent; which is that, if

no movable property of the judgment debtor can with reasonable diligence be found,
or if such property is insufficient to satisfy the judgment and the costs of execution,
and the judgment debtor is the owner of any immovable property...”
.
A writ of attachment empowers the Sheriff (in present day court bailiff with the
assistance of relevant law enforcement personnel) to seize the JD’s property wherever
they may be found within the jurisdiction of the court to be sold in settlement of the
judgment debt and cost of execution.
The Forms for the writ of attachment are Forms 4,5 and 6 of the 1st Schedule
to the Sheriff and Civil Process Act, Cap S6,LFN 2004, with the goods
and value of goods which may be seized by the Sheriff or other officer executing any
writ of Fi-fa issued from the court with jurisdiction provided for in Section 25 of
the Sheriff and Civil Process Act thus;
25: Every sheriff or officer executing any writ of execution issued from a court
against the goods or chattels of any person may by virtue thereof seize-
(a) any of the goods and chattels of that person, except the wearing apparel and
bedding of that person or his family and the tools and implements of his trade, to the
value of ten naira, which shall to that extent be protected from seizure; and
(b) any money, bank-notes, bills of exchange, promissory notes, bonds, specialties or
securities for money belonging to that person.
The section can rightfully be interpreted to mean that the Sheriff or other officer
executing the writ may not seize the clothes, bedding and other personal effects of the
JD or his family members nor the tools and implements of his trade. He may however
seize any other goods and chattel belonging to the JD, provided these items are worth
at least N10.00. Pegging the monetary value of goods which may be seized at N10.00
does not reflect the present depreciation and value of the NGN. It is suggested that
this section be reviewed to reflect present day fiscal realities.
After the execution of a writ of Fi-fa, the Sheriff shall not sell the goods seized until
the expiration of a period of at least five (5) days next following the day on which the
goods have been so seized, save the goods are perishable in nature or upon the express
request in writing of the JD. See Section 29, Sheriff and Civil Process Act thus;
29: (1) No goods seized in execution under process of a court shall be sold for the
purpose of satisfying the writ of execution until the expiration of a period of at lease
five days next following the day on which the goods have been so seized unless-
(a) the goods are of a perishable nature; or
(b) the person whose goods have been seized so requests in writing: Provided that the
sheriff may, if he is unable from want of time to complete the sale, adjourn the same
for a period of not more than three days, and so on as often as may be necessary:
Provided further that the court may, if it thinks fit, direct that the sale shall be
postponed for any time not exceeding 28 days after the attachment.
(2) In every case where the property attached is apparently over forty Naira in value,
it shall be set up for sale by the sheriff in the principal High Court or magistrate's
court house of the division or district in which the attachment is made, and if the place
where the attachment is made is not within eight kilometers of the court from which
the writ of execution issued, the judge or magistrate shall give direction as he thinks
fit:
Provided that the judge or magistrate may, if he thinks fit, in any particular case direct
the sale to be held at any other place in the district.
(3) Every sale shall take place between the hours of seven o'clock in the morning and
eight o'clock in the evening and everything set up for sale shall be knocked down to
the highest bidder for ready money.
(4) Notice of the day and hour of sale of any movable property, apparently over forty
Naira in value, attached, shall be published four days at least before the day of such
sale, by being posted upon the door of the court house of the division or district in
which the attachment is made and where the sale is to take place at some other place,
then at that other place also, and if the court so directs in a newspaper published in
Nigeria.
The above reproduced section also makes provision on the time and location of such
sale.
 EXECUTION AGAINST MOVEABLE PERSONALTY
Three days after the date of delivery of judgment [ on this see; Order 4, Rule 1(2),
Judgment (Enforcement) Rules and CHIEF M. O. OLATUNJI v. OWENA
BANK OF NIGERIA PLC & ANOR (2002) LPELR-10991(CA)], the JC shall
apply to the Registrar of the court for a writ of attachment to levy execution against
the moveable personalty of the JD (see; Order 4, Rule 15 Judgment
(Enforcement) Rules).
This application is made by filling a praecipe in Form 3 in the 1st Schedule to the
Sheriffs and Civil Process Act. In the form he shall state sufficient information of the
JD for his proper identification and this Form shall be filed at the court registry after
paying the appropriate filing fees.
The Registrar shall endorse on the Form the date and hour of the application. If more
than one writ is issued, they shall be executed in order of the times so entered (see
Section 20(3) Sheriffs and Civil Process Act).
The Registrar also endorses the sum of money payable under the judgment and the
cost of execution on the Form.
Where the name or address in the Form differs from that of the JD in the judgment,
the applicant must satisfy the Registrar that the name or address in the praecipe is
applicable to the JD and the Registrar shall insert both names/addresses in the process.
See; Order 4, Rule 17, Judgment (Enforcement) Rules.
The goods seized must be that of the JD or whomever the execution is to be levied
and not that of another person within same vicinity or somewhere else entirely. See
the case of HOLMAN BROS v THE COMPASS TRADING CO (1992) 1 NWLR
(pt.217) 268 with facts thus; By writ of summons in suit No. E/253/84 the plaintiff
now the appellant obtained judgment against the Defendant now the respondent IN
the sum of N277, 030.00 plus N200.00 as costs. Having exhausted earlier fruitless
efforts to recover the judgment sum the appellant brought the present application
against the immovable property of the judgment debtor situate at 37, Amokwe Street,
Uwani Enugu.
The application at the High Court was supported by a –9- paragraph affidavit and
further 11- paragraph affidavit and annexed to it was a certified true copy of a power
to Attorney Exhibit C from one Moses Anisiobi IN favour of one Ike Ogakwu
Ugochukwu, the Managing Director of the judgment/Debtor Company, The
respondent on the other hand, filed a 9 paragraph affidavit denying owning 37,
Amokwe Street, Uwani Enugu and averred that they were only merely tenant to the
said Anisiobi – Ike Ogakwu Ugochukwu.
Further the said Ike Ogakwu Ugochukwu deposed to a 16 paragraph affidavit

strengthening the earleir facts that the said property was owned by Moses Okafor
Anisiobi as registered in the Ministry of Lands, Enugu as No. 23 at p 23 in volume
1068, under Statutory Certificate of Occupancy dated 1st January, 1979. Further it
was averred in the said affidavit that the respondents were only a tenant in the
property and that the receipt of payments of their rents were issued to them as well as
to other tenants by the donee of the Power of Attorney who at no time assigned the
said property to the respondent.
That the donee personally used the certificate of occupancy and the Power of
Attorney as collateral’s to secure a loan in the sum of N300, 000.00 in the First Bank
of Nigeria Ltd. in favour of the Respondent; that the subject matter of the suit stems
from supplies made by the appellants to a third party in which the respondent was an
intermediary.
The learned trial Chief Judge after listening to both sides rejected the application
holding that the property – 37 Amokwe Street, had not passed to the Respondent and
was therefore not liable for execution.
 EXECUTION AGAINST IMMOVABLE PERSONALTY
Where execution has been levied against the movable chattel of a JD and the
judgment debt has not been fully settled and other movable chattel of the JD cannot
be realized, a writ of execution can be issued against the immovable personalty of the
JD. This includes all landed property of the JD and all buildings on the land, interests
and rights in the buildings on the land. See; Section 46 (1) of the Sheriffs and Civil
Process Act thus;
46: (1) Every house or other building belonging to the owner of the land on which it
stands shall be dealt with as immovable property and may be taken in execution
accordingly, and where any house or other building is on land which is not the
property of the owner of the house or other building, or on land held under the
provisions of the Land Use Act, all the right, title and interest of the owner of the
house or other building in the land on which the house or building is erected may be
sold, together with the house or other building, and the same shall be dealt with as
immovable property, subject to the provisions of the said Act.
Leave of the High Court is required to issue a writ of attachment against immovable
property of a JD. The application for leave to issue a writ of Fi-fa against immovable
chattel shall be by motion on notice, supported by an affidavit and a written address.
Though section 44 of the Sheriffs and Civil Process Act is silent on the mode of
application perse, the court in LEEDO PRESIDENTIAL MOTEL LTD V BANK
OF THE NORTH LTD (1998) 7 SCNJ 328 stated that the reason why the
application should be on notice is because there are many things the court has to
satisfy itself about and so it is only fair and just to put the JD on notice. Additionally
Order 4, Rule 16 of the Judgment (Enforcement) Rules provides as
follows;
(1) When a judgment creditor desires a writ of attachment and sale to be issued
against the immovable property of the judgment debtor he shall apply to the High
Court.
(2) The application shall be supported by evidence showing-
(a) what steps, if any, have already been taken to enforce the judgment, and with what
effect; and
(b) what sum now remains due under the judgment; and (c) that no movable property
of the judgment debtor, or none sufficient to satisfy the judgment debt, can with
reasonable diligence be found.
(3) If upon the hearing of the application it appears to the court that the writ of
attachment and sale may lawfully issue against the immovable property, the court
shall make an order accordingly. (4) A writ of the attachment and sale against
immovable property shall be in Form 38.
If leave is granted, the Registrar issues the writ as in Form 38 in the 1st
Schedule to the Judgement (Enforcement) Rules. After the issuance, the
immovable personalty will be attached.
Execution of the writ occurs in the following steps;
a. Notice of attachment is delivered in Form 41 to the JD. This is done by leaving it

at the place where attachment is to be effected and save except otherwise ordered by
court,
b. by pasting in Form 40 in a conspicuous place on the land prohibiting all persons

from recovering the land by purchase, gift, mortgage or otherwise [Order 5, Rule
3&4 Judgement (Enforcement) Rules].
c. The Sheriff may also take and retain actual possession by putting some fit and
proper person approved by him in the possession of the land [Order 5, Rule 3
Judgement (Enforcement) Rules].
Order 7, Rule 6 (1) Judgement (Enforcement) Rules provides to the effect
that the immovable property shall be sold fifteen (15) days after attachment unless the
judgment debtor requests otherwise in writing for an earlier sale.
Where the Sheriff is unable to complete the sale for want of time, he may adjourn for
a period of not more than three (3) days and so on as oft’ as necessary. Where the
court thinks it fit, it may direct that the sale be postponed for any time not exceeding
twenty eight (28) days. See the proviso to Order 7, Rule 6(1) Judgement
(Enforcement) Rules.
The place of sale, time of sale, notice of sale are provided for in Order 7, Rule 6
(2), (3),(5) Judgement (Enforcement) Rules.
The Proceeds of Sale of movable and immovable personalty shall be payable as

follows;
(a) where the property is sold by the sheriff, he shall follow the procedure prescribed
in Rule 13 of Order I;
(b) where the property is sold by an auctioneer, he shall pay the gross proceeds into
court;
(c) the money so paid into court shall be payable as follows-
(i) any amount then due and unpaid for sheriffs, bailiffs, and appraiser's fees and
expenses: to the sheriff, and next,
(ii) the prescribed fees and expenses of sale: to the auctioneer, if any, and next,
(iii) the amount to be levied, together with costs paid by the judgment creditor
subsequent to the issue of the writ, if any: to the judgment creditor, directly or through
the registrar of the home court, if any, and next,
(iv) the balance: to the judgment debtor
b. GARNISHEE PROCEEDINGS
Garnishee proceedings are provided for in Part V of the Sheriff and Civil
Process Act at Sections 83-92 respectively. Garnishee proceedings are one of
the most common means utilized in the recovery of monetary judgments and proceeds
of crime where applicable.
Williams Dawodu, JCA in CENTRAL BANK OF NIGERIA v. NEUTRAL

RESOURCES LIMITED & ANOR (2021) LPELR-52903(CA) on garnishee
proceedings and their nature in description remarked thus in his judgment; “The
proceeding of garnishee is a process leading to the attachment of debt owed to
judgment debtor by a 3rd party who is indebted to the judgment debtor. It is sui
generis and is unlike other proceedings for enforcement of judgment. See the cases
of FIDELITY BANK V. ONWUKA 2017 LPELR-42839 CA, CITIZENS BANK
V. SCOA NIG. LTD 2006 18 NWLR PT. 1011 and UBN PLC. V. BONEY
MARCUS INDS LTD. & ORS 2005 ALL FWLR PT. 278 1037.
In the case of DIAMOND BANK LTD (2002) 17 NWLR (PT 795) 120 it was
described as follows: "Garnishee proceeding is a separate and distinct action between
the judgment creditor and the person or body holding in custody the assets of the
judgment debtor, although, it follows from the judgment that pronounced the debt
owing. Thus, a successful party in his quest to move fast against the assets of the
judgment debtor usually makes an application exparte for a ‘garnishee order nisi’ ...
the debt due or accruing to the judgment debtor from such person or body that from
the moment of making the order is called the garnishee.”
Note that under the law, the money standing to the credit of an individual in the bank
in his/her account is construed as a debt owed by the bank to such an individual. See
FILONE v OLADIPO (1934) 11 NLR 168.
The parties to the garnishee proceeding are the garnishor (the Judgment creditor
bringing the application) and the garnishee (third party/bank in custody of the money
sought to be garnisheed). The proceeding is strictly between the garnishor and
garnishee, with the Judgment debtor being more or less a nominal party so to speak.
Where however the judgment sum is not certain and the judgment debtor is confused
by the judgment creditor, then by the combined interpretation of section 83(2) of
the Sheriff and Civil Process Act and Order VIII, Rule 8 of the Judgment
(Enforcement) Rules, the JD should be given a hearing. See GWEDE vs.
DELTA STATE HOUSE OF ASSEMBLY & ANOR.(2019)LPEL R-47441(SC).
A JD not being a party to the proceedings must however be kept in the know of the
stages of proceedings and should be served with processes and must be within the
state. See Section 83(1) Sheriffs and Civil Process Act and DARSEY DIGITAL
PRESS LIMITED & ANOR v. ADEMOLA AKINTUNDE AYO & ANOR (2018)
LPELR-44488(CA).
PROCEDURE OF GARNISHEE PROCEEDINGS
A garnishee proceeding is commenced at the court with the requisite jurisdiction

under which the JC may sue the garnishor for the debt in accordance with the rules of
court; Order 8, Rule 2 Judgement (Enforcement) Rules. Note that the court
in which a proceeding commences may not necessarily be the same court that will
give judgment.
A Garnishee application is made by motion ex-parte supported by an affidavit to show

cause praying for a Garnishee Order Nisi requiring the garnishee to show cause why
the Order Nisi should not be made Absolute. See Section 83(1) Sheriff and Civil
Process Act.
When a Garnishee order is served on a garnishee, he is under obligation to

withhold/restrain the removal of money in the account of the JD, but paying same to
the court. Money can only be paid out of the account with the leave of court. See
SKYE BANK PLC v. CORNELIO COLOMBARA & ANOR(2014) LPELR-
22641(CA).
The form of the affidavit in support of the motion ex-parte is in Form 25 in the 1st
Schedule to the Sheriffs and Civil Process Act ans Order 8, Rule 3(a)
Judgement (Enforcement) Rules.
If the proceedings are in a court other than one that gave the judgement, the garnishor
will file a Certified True Copy of the judgment. See Order 8, Rule 3(b)
Judgement (Enforcement) Rules.
The affidavit in support of the motion ex-parte must contain the following pursuant to
Section 83 of the Sheriffs and Civil Process Act;
a. The names, addresses and occupation of the JC, the JD and the garnishor.
b. That the judgment has been given and the date it was given.
c. That the judgment is still unsatisfied.
d. The amount of the judgment debt remaining unsatisfied.
e. That any other person is indebted to the JD and is within the state.
f. Attach a CTC of the judgment if it was obtained in a court other than the court
hearing the garnishee application.
The court relying on the affidavit evidence of the garnishor grants an Order Nisi
requiring the garnishee to appear afore the court to show cause.The Order Nisi is
issued by the Registrar in Form 26 of the 1st Schedule to the Sheriff and Civil Process
Act [Order 8, Rule 3(2)]. This must be served on the garnishee and the JD at least
14 days before the hearing date; section 83(2) Sheriff and Civil Process Act.
NB: The JD has the opportunity to discharge the order Nisi, if he is able to convince
the court to do so at the hearing.See NAOC v OGINI (2011) 2 NWLR
(PT.1230),p.131 at 152-153, F-C, where Ogunwumiju, JCA said and I quote;
“...Where the court grants the order Nisi on the garnishee, the Registrar through the
Sheriff of the Court must serve on the garnishee, the judgment creditor and the
judgment debtor the order Nisi on Form 26 of JER. The registrar must then fix a date
not less than 14 days after the service of the order Nisi on the judgment creditor, the
judgment debtor and the garnishee for hearing. This subsequent hearing envisages a
tripartite proceedings in which all interests are represented.” Note the emphasis
on the last sentence as being personal, denoting the above point being made. See also;
NIGERIAN BREWERIES V CHIEF WORHI DUMUJE & ANOR. REPORTED
IN (2016) 8 NWLR (PT. 1515) 536 @ 599 PARA B AND H, 600 PARA B –C, 601
PARA A – C. The Benin division of the court of Appeal held as such; “...A
comprehensive consideration of the provisions of the Judgement Enforcement Rules
will reveal that the judgement debtor is a necessary party to garnishee
proceedings before order absolute….Where the garnishee does not pay until the
return date, the court shall hear both the judgement creditor and the judgement debtor
if the latter appears in court before making such order in the proceedings…Even in
cases where the garnishee disputes liability, the court still has duty to hear the
judgement debtor just like the judgement creditor before determining the liability of
the garnishee to pay out the amount to judgement creditor…I am of the firm view that
after the service of the order nisi on him, the judgement debtor may convince the
court by way of affidavit to discharge the order nisi ….The service of order nisi
and all accompanying processes on the judgement debtor is not a matter of
justifying rigteousness…. In my humble view, the judgement debtor who is the
owner of the money in possession of the garnishee has a right to be heard if he
wishes before the garnishee order is made absolute…Therefore, it is my own
humble conclusion that a judgement debtor is free to challenge the order
nisi before the court that made the order and to urge the court to set it aside…”
An order Nisi binds the garnishee and attaches the debt due from him to the the JD in
the manner the court will direct. See Section 85 Sheriff and Civil Process Act.
Doing anything contrary to the Order Nisi to the debt opens him up to being liable for
contempt of court. There is no right of appeal against an Order Nisi made absolute.
See Section 14(1) Court of Appeal Act.
Form 26 informs the garnishee that if he pays the money to the registrar within Eight
(8) days of service of Form 26, he shall incur no further cost.
The garnishee is then expected to file an affidavit accepting or disputing the

debt.Where he accepts and pays the money into the courts account, the proceedings
terminate.
Where he disputes, he will come to court on the date for hearing and show cause. He
does this by filing a counter affidavit (and a further and better affidavit where
needed). He may contend that the money inquestion does not belong to the JD or
belongs to a third party with a lien or charge over the monies contained in the
account.The garnishee may apply for such third party to be made a party to the
proceedings and such third party with a lien/charge is expected to appear in court and
establish claim.
The court decides on the weight of evidence afore it and makes orders as appropriate.
Where the court is satisfied by the evidence adduced by the garnishee it may
discharge the garnishee from the Order Nisi.
Where the court is not satisfied, it will make the order Nisi; Absolute.This can only be
set aside on appeal. See IN RE: DIAMOND BANK LTD (2002) 17 NWLR
(PT.795) 120.
If the garnishee fails to pay over the debt to the JC after an Order Nisi has been made
Absolute, appropriate writs of attachment can be issued against the garnishee like as
though he is the JD himself. This may be levied upon the garnishee by any of the
ways of enforcing a monetary judgment under Section 86 of the Sheriff and Civil
Process Act.
NB: Where money liable to be attached by garnishee proceedings is in the custody or

under the control of a public officer in his official capacity or in custodia legis,
and Order Nisi shall not be made unless consent to such attachment is first obtained
from the Attorney General in the case of money in custodia legis. See Section
84(1),(2) and (3)(a) and (b), Sheriff and Civil Process Act.
Money belonging to a public corporation in a commercial bank can be levied without

the leave or consent of the Attorney General. See PURIFICATION TECHNIQUE
NIG.LTD v A.G LAGOS (2003) LPELR-13108(CA) wherein it was held that
monies held by the respondent (AG) in the garnishee banks were not under the
custody or control of the respondent or a public officer, therefore were not subject to
Section 84 Sheriff and Civil Process Act.
Note that on whether a garnishee proceeding can be made even if an application for
stay of execution is pending, our case law is still at loggerheads in two conflicting
parts. In NITEL v ICIC (DIRECTORY PUBLISHERS) LTD (2009) 16 NWLR, it
was held by the National Industrial Court of Nigeria that the existence of an
application for stay of execution of a judgment does not preclude a judgment creditor
from seeking to use garnishee proceeding, which is a separate proceeding entirely to
enforce the judgment. The court reasoned and held that there is a distinction between
enforcement of a judgment by a writ of execution and enforcement by garnishee
proceeding (See P.388, paras D-E of the law report). The court is of the opinion that
garnishee proceedings are a method auxiliary to that of execution for the enforcement
of a judgment. The court therefore concluded and held that a garnishee proceeding
cannot be restrained by an order of injunction; interlocutory, prohibitory or
mandatory.
In WAEC&ORS v MRS. NKOYO EDET IKANG&ORS [2011] LPELR 5098

CA, the NICN was of the view that it is not reasonable to ignore a pending motion for
stay of execution and proceed to grant an ex-parte garnishee application. Additionally
in the case of NIGERIAN BREWERIES v DUMUJE (2016), 8 NWLR (Pt 1515)
536, the Court of Appeal invited arguments from 8 Amici Curiae consisting 5 Senior
Advocates of Nigeria and 3 Learned Doctors of Law on the issues and held that the
judgment debtor is a necessary party in the proceedings and is entitled to file a motion
for stay of execution of a judgment by way of garnishee proceedings.
The Court of Appeal sitting at its Yola Division, a few months post NIGERIAN
BREWERIES V DUMUJE in ZENITH BANK PLC v. CHIEF GODWIN
OMENAKA & ANOR (2016) LPELR-40327(CA) reverted to the position in
NITEL v ICIC (Supra), holding that the judgment debtor cannot be heard in a
garnishee proceeding. No reference was made to DUMUJE (Supra).
c. WRIT OF SPECIFIC DELIVERY/RESTITUTION:
This method of enforcement is for judgment for the delivery of goods. Order 11,
Rule 4 Judgement (Enforcement) Rules, provides to the effect that where a
judgment is for the delivery of goods by the judgment debtor to the judgment creditor,
it can be enforced by a writ of delivery in Form 67.
If in addition to the delivery of goods, the judgment is also for the payment of a sum
of money by the JD, it may be more appropriate filing a Form 68; writ of delivery
with execution against immovable property.
Note that a judgment for delivery of goods may be enforced by a writ of specific
delivery or restitution of their value, a writ of sequestration or a writ of Committal 38.
See; OKOYA V. SANTILLI (1990) 2 NWLR (PT. 131) 721 AT 196 & 213
wherein the Supreme Court itemized the methods of enforcing different kinds of
judgments as follows:
(i) A judgment/order for payment of money may be enforced by a writ of fierifacias,

garnishee proceedings, a charging order, a writ of sequestration or an order of
committal on a judgment debtor's summons.
(ii) A judgment for possession of land may be enforced by a writ of possession, a writ
of sequestration or a committal order.
38
Tope Adebayo LP, ‘An Enforcement Of Judgements And Court Orders In The Nigerian Legal System’, Tope
Adebayo LP Article, < https://topeadebayollp.wordpress.com/2011/06/09/an-enforcement-of-judgments-and-
court-orders-in-the-nigerian-legal-system/> accessed 30 June 2024.
(iii) A judgment for delivery of goods may be enforced by a writ of specific delivery
or restitution of their value, a writ of sequestration or writ of committal.
(iv) A judgment ordering or restraining the doing of an act may be enforced by an
order of committal or a writ of sequestration against the property of the disobedient
person.
Based on the principle of specific performance, an order of specific delivery may be

issued by the court, ordering the criminal/defendant to restore to the claimant/victim
specific items wrongly obtained or the monetary value thereof or its monetary
equivalent.
Where a claimant brings a successful claim seeking the return of specified goods, the
High Court may make an order compelling the defendant to ‘deliver’ those goods to
the claimant. A writ of delivery is the means by which that order is executed if the
defendant fails to comply. It is a document issued by the High Court instructing High
Court Enforcement Officers (Sheriff) to cause the goods to be delivered by the
defendant.
Form 67 is signed by the Judge or Registrar and leave is not required to issue a writ of
delivery. If the judgment however gave the JD the option of paying the assessed
monetary value of the goods in place of delivery of the goods and the JC wants
delivery, an ex-parte application for leave to issue the writ of delivery is required.
See OMOLODUN v AKINSANYA (1947) 18 NLR 115.
d.JUDGEMENT DEBTOR SUMMONS
Judgment Debtor Summons is another civil method through which monetary

judgments for the recovery of proceeds of crime are enforced. Section 55to 82 of the
Sheriff and Civil Process Act. It is commenced by the judgment creditor filing a
precipice in either Form 13 or 14 or 15 of the 1st Schedule to the Sheriff and Civil
Process Act. The judgment debtor is summoned to appear before the Court on a stated
day where he is, as provided by Section 55 of the Sheriff and Civil Process Act;
“...examined on oath as to his means and ability to pay the judgment debt”. Where it
is discovered that he has the means to pay but has intentionally withheld payment, he
will be committed to prison. See ANEKE V. EDE(1989) I N.W.L.R. (PT. 100) 738.
A judgment debtor personally served with a judgment summons in line with Order
9, Rule 5(1) of the Judgment (Enforcement) Rules, but fails to appear on
the appointed date may be arrested by a warrant from the court and forcibly brought
to the court. There must be five (5) clear days between the day of service and that of
hearing, as the Registrar may direct, having regard to the distance between the
judgment debtors abode and the court. See Order 9, Rule 5(2) Judgment
When the judgment debtor served with judgment summons appear before the Court
either voluntarily or by force, he is examined or oath by the judgment creditor and by
the Court regarding his means and proposal for satisfying the judgment debt. He is
expected to make a full disclosure, and to provide all books, documents and papers as
may help the Court to reach a decision in the matter. At the end of the examination the
Court may make such order as the circumstances warrant which may be either for the
attachment and sale of the judgment debtor's property, or the payment of the debt by
stipulated instruments, or for the committal of the debtor into prison39.
Where the judgment debtor pays the money owed, the judgment summons may be
struck out as the judge deems fit. See Order 9, Rule 8(2) Judgment
Note that the likely outcomes of this court summons per Section 63 of the Sheriff
and Civil Process Act, are:
 The judgment debtor may be committed to prison for failure to settle debt, where
it is discovered that he has the means but simply refuses to pay.
 The court may give an order attaching his property for sale.
39
Sylvester N.S. Eze, Esq, ‘ENFORCEMENT AND EXECUTION OF JUDGMENT AND ORERS OF COURT IN NIGERIA’, <
https://journals.ezenwaohaetorc.org/index.php/IBJ/article/download/1514/1558> accessed 30 June 2024.
 The court may give an order for payment in installments.
 The court may give an order for the discharge of judgment debtor from prison.
Note that: An order for committal to prison is only made when it is shown by the
examination that the judgment debtor has the means to pay the judgment debt but
refused or neglected to so. The committal shall not exceed six weeks and the
responsibility for the judgment debtor's subsistence whilst in prison is that of the
judgment creditor, unless the Court otherwise directs. The imprisonment does not
cancel the debt owned (Section 76, Sheriff and Civil Process Act), and it is only a
punishment for the judgment debtor's misconduct in willfully disobeying to pay the
debt. Misconduct such as refusal to honestly and sincerely disclose matters examined
upon may also result in committal for disobedience. See Section 72, Sheriff and
Civil Process Act. Note that committal cannot be made in anticipation of default. See
MAKINDE v BARCLAYS BANK DCO (1962) 2 ALL NLR 104 at 107.
The JD may file in duplicate a full statement and account of all property of whatever
nature belonging to him, be it in expectancy or possession, held jointly or exclusively,
save necessary wearing apparel of himself and family and implements of his trade to
the value of ten Naira and the location of such property. See Order 9, Rule 9 (9),
(1) Judgment (Enforcement) Rules. A duplicate statement shall be sent by the
Registrar to the JC.See Order 9, Rule 9(2) Judgment (Enforcement)
Rules.
NB: Where a judgment directs the judgment debtor to execute a deed, as for instance
in an action for specific performance he is directed to execute the deed of assignment
in favour of The judgment creditor, and there is a default in complying with the order,
the judgment creditor may enforce compliance to that order by recourse to Order I I
Rule I I of the Judgment (Enforcement) Procedure Rules. He (the
judgment creditor) may prepare the deed or instrument in accordance with the terms
of the judgment, pay the necessary stamp duty thereon and present same to the Court
for execution. The execution of the document by the registrar of the court on the
direction of the Judge has the same effect as if the document was executed by the
judgment debtor himself; Enforcement of judgment directing deed to be executed.
e.WRIT OF POSSESSION:
Judgment for recovery or delivery of possession of land in an action other than an

action between landlord and tenant is enforced by writ of possession pursuant to
Order 11, Rule 5, Judgment (Enforcement) Rules. It cannot be issued until
the expiration of the day on which the judgment debtor is ordered to give possession
of the land or, where no such day was given, until the expiration of 14 days from the
day judgment was given, see Order 4, Rule 1(1), Judgment (Enforcement)
Rules.
This writ is for the enforcement a judgment or order for the recovery of land or the
delivery of possession of land. The writ directs the sheriff of court to enter upon the
land and deliver possession completely to the judgment creditor in an action. See
section 24 of the Sheriff and Civil Process Act thus;
24; For the purpose of executing a writ to give possession of any premises, it shall not
be necessary to remove any goods or chattels from those premises.
See also Section 51 of the Sheriff and Civil Process Act;
51; If the property sold shall consist of a house, land or other immovable property in
possession of a judgment debtor or some person on his behalf or of some person
claiming under a title created by the judgment debtor subsequently to the attachment
of such property, the court shall, on the application of the purchaser, order delivery
thereof to be made by putting the party to whom the house, land or other immovable
property may have been sold or any person whom he may appoint to receive delivery
on his behalf, in possession thereof and, if need be, by removing any person who may
refuse to vacate the same.
The application for writ of possession of land is made by filling and filing the
appropriate Form in the 1st Schedule to the Sheriff and Civil Process Act. See Order
11, Rule 7, Judgment (Enforcement) Rules. It should be filed at the court
where the judgment was given, however if the judgment was obtained for recovery or
delivery of possession of land as well as payment of money, it may be enforced by the
writ of possession and a writ of attachment in addition.
The writ must contain sufficient description of the property for which it is being
issued and the sheriff is empowered where necessary to use reasonable force in its
execution.
7.NOTABLE NIGERIAN CASES ON RECOVERY OF PROCEEDS
OF CRIME THROUGH CIVIL METHODOLOGY.
Organized crime is a hazard to national security and the realization of institutional

principles. Any society plagued by this menace must stir itself up to leave no safe
space for any individual or entity seeking to surreptitiously transfer, conceal or utilize
the proceeds of crime and corruption or to evade sanctions. In past decades, Nigeria’s
effort expended on the anti-corruption war, although commendable, had not been met
with commensurate outcome40.
The Nigerian jurisprudence on recovery of proceeds of crime is however rapidly

evolving most notably with the novel; Proceeds of Crime (Recovery and
Management) Act, 2022. It is notable that the jurisprudential basis for the enactment
of the Act is for the recovery of these assets through civil proceedings thus a conclave
of criminal and civil law with the primary aim of recovering assets from the proceeds
of crime.
40
Tochukwu Onyiuke, A Critique of the Nigerian Proceeds of Crime (Recovery & Management) Act 2022, Amicus
Curiae, Series 2, Vol 4, No 2, 461-475 (2023), < https://journals.sas.ac.uk/amicus/article/view/5592/5277>
Prior to the enactment of this framework enhancing Act, there have however been
some instances under which the Nigerian courts in cahoots with international courts,
recovered proceeds of crime through more or less civil means. We examine a few of
these cases briefly.
a. The Joshua Dariye Case:
Joshua Chibi Dariye, was the Governor of Plateau State, Nigeria from May 1999
through May 2007. He was alleged to have misappropriated more than USD 11.9
million during his administration. The monies were channeled into bank accounts in
the United Kingdom and Nigeria under his name and those of his close associates.
Dariye also used aliases to hide his wealth, he purchased a property in London under
one “alias” and utilized business fronts to launder money. Dariye was arrested in
London by the Metropolitan Police on suspicion of money laundering; a cash sum of
USD $210,000 was seized from him. After being released on bail, Dariye fled the
country and was able to avoid the subsequent British international arrest warrant
through his constitutional immunity as a Governor in Nigeria. A ‘State of Emergency’
was declared in Plateau state for six months in 2006, and he went into hiding only to
resurface and assumed office after the expiration of the ‘State of Emergency’ to
conclude his tenure as Governor in 2007.
The Metropolitan Police and the Crown Prosecutorial Service, working with Nigeria's
Economic and Financial Crimes Commission (EFCC) employed Kendall Freeman
Solicitors to file two civil actions against Dariye to recover his London based asset.
Dariye's ill-gotten wealth in the United Kingdom was confiscated through two civil
actions against him by the Federal Republic of Nigeria in 2005 and 2007. The first
civil action recovered a property purchased by Dariye for £395,000, while the second
civil action recovered assets up to US $5.7 million (USD $8 million with interest)
stored in Dariye's bank accounts at National Westminster and Barclays Banks in
London. After losing his legal immunity in 2007, Mr. Dariye was arrested and
charged with corruption and money laundering by the Nigerian Economic Financial
Crimes Commission.
The High Court of the Federal Capital Territory, Gudu, Abuja, on Tuesday 12 June
2018 sentenced Dariye to 14 years' imprisonment on the charges of criminal breach of
trust and misappropriation of funds (1.6 billion naira) while he was the Governor of
Plateau state.
As evidenced in the Dariye case, a vital aspect of asset recovery is international

cooperation between countries. Articles 43, 44, and 46 of the UNCAC
respectively make provisions for international cooperation, extradition and Mutual
Legal Assistance. MLA does not cover civil actions, as shown in the Dariye case, but
utilizing informal cooperation and assistance can be just as effective in civil matters.
b. General Sani Abacha’s Case:
General Sani Abacha, had governed Nigeria for five years from 1993 to 1998; Abacha
and his cronies were alleged to have embezzled over US$5 billion: about $2.3 billion
stolen from the treasury, and about $2 billion were allegedly received as bribes. These
monies were purportedly laundered in foreign bank accounts across the world,
including Switzerland, Luxembourg, Liechtenstein, Hong Kong, UK, and USA (Ige
2002). Investigation by the UK Financial Services Authority (FSA) and the London
Metropolitan Police confirmed that over $1.3 billion of the Abachas’ wealth had
passed through London41.
What is commonly referred to as the ‘Abacha case’ has a multidimensional reflections

and implications for asset recovery as a thrust in anti-corruption and anti-money
laundering. The weight of Article 53 and 54 of the UNCAC is well illustrated in the
case of Sani Abacha. Indeed, the accomplishment of the Nigerian authorities in
negotiations with the Swiss Government in the Matter of Sani Abacha seemed to
herald the potentials and promise of asset recovery 42. President Obasanjo, who
41
42
wassworn into office in May 1999, made efforts to find Abacha’s stolen assets by
engaging a Swiss legal firm in September 1999 to assist with a request for Mutual
Legal Assistance which led to an issuance of a general freezing order. The freezing
order was however not a fait accompli. Swiss law required Nigeria to present the
Swiss authorities with a final forfeiture judgment reached in the Nigerian courts
before the funds could be repatriated. This would have been a daunting, if not
insurmountable task, for the Nigerian Government. However, in a landmark ruling,
the Swiss courts legally applied the organized crime provisions of the (then) Art 59
Swiss Criminal Code which mandated the confiscation of ‘all assets, which are
subject to the power of disposal of a criminal organization’. Deeming the Abacha clan
‘a criminal organization’, the courts declared the assets would be confiscated except it
could be shown to have a legitimate source. After a series of negotiations, which led
to the selection of the World Bank as a bona fide third party for the monitoring of
recovered assets, repatriation finally took place in September and November 2005 and
early 2006, for a total of $505.5 million43.
Another dimension of the Abacha case had it that after preliminary findings, the
Government of Nigeria joined the family of the late head of state, Abacha, his former
ministers (Ani and Dalhatu), Abubakar Bagudu, and Mecosta Company in a suit filed
in the UK on 20 July 1999. In the suit, the Nigerian Government claimed that Abacha
was the de facto owner of Mecosta Securities Ltd, the company that was used in the
Ajaokuta debt buy-back deal. In response to the case in the High Court of Justice
(Queen’s Bench Division, England) Bagudu on his behalf, the Abacha family, and
Mecosta Securities LTD, sought an out-of-court settlement which materialized in the
signing of an agreement between the parties and the Federal Government of Nigeria.
The agreement, which was negotiated by the Honourable Attorney-General and

Minister of Justice of Nigeria on behalf of the Federal Government of Nigeria, was
signed on 10 August 1999 with the parties. Its terms were as follows:
1) The defendants requested that the foreign accounts of the Abachas, which were
frozen at the instance of the Federal Government of Nigeria, be defrozen. And that
43
Enrico Monfrini, ‘The Abacha Case’, Google Documents, < https://mbk.law/useruploads/ordonsfiles/081130_-
_monfrini_article_for_recovering_stolen_assets_-_the_abacha_case.pdf> accessed 1 July 2024.
upon the release of their accounts by the government, the defendants would refund the
sum of DM300 million in full and final settlement of claims made by the Government
of Nigeria on the Ajaokuta Steel Complex Bill of Exchange.
2) That the US$50 million promissory notes issued earlier by Mohammed Abacha
should be rendered null and void.
3) That the settlement should be filed in the High Court of Justice (Queen’s Bench
Division, England) and should be adopted as the court judgment in this case; and
4) That all parties shall cooperate in discharging the judgment accordingly. Chief
Bola Ige who succeeded Kanu Agabi as Attorney General and Minister of Justice later
disclosed that the out of court settlement resulted in the return of over $1 billion from
various banks in Liechtenstein, Switzerland, Luxembourg, and UK (Ige, 2002).
The key legal issues and lessons from this case are many that cannot be discussed
here in detail due to lack of space. Briefly stated, the steps taken by Nigeria in the
Ajaokuta case briefly mentioned above, that is, the preference for criminal proceeding
rather than civil actions to recover the proceeds of illicit enrichment, have tested the
assumption that corruption is a predicate for money laundering. Unfortunately, the
criminal law looks backwards, fixing blame and not looking forwards in a strategic
sense to the need for prevention Sometimes the criminal law fixes the blames on the
wrong targets. Furthermore, recovery efforts have been focused too much on the
corrupt leader, ignoring the intermediaries who assisted the leader in hiding his ill-
gotten wealth.
With the instrumentality and assistance of International law, pre-The Proceeds of

Crime (Recovery and Management) Act, 2022, Nigeria was able to secure the
proceeds of crime or portions thereof through means other than post conviction.
8.CONCLUSION
The existing legal and institutional framework for asset recovery in Nigeria is still
evolving44. The nation has made provision for confiscation pursuant to a criminal
conviction in the Money Laundering (Prohibition) Act, 2011 and the EFCC Act,
based on the outcome of cases that have been handled by the EFCC, it can be argued
by most that the institution has been effective in respect of cyber and digital fraud
related cases involving ordinary citizens, majorly young persons between the ages of
17-40, but more or less quiescent and inert in respect of cases involving Politically
Exposed Persons (PEPs). One of such cases struck out by the court is the ‘famous
Halliburton bribery case’ in which the EFCC filed a lawsuit against officials accused
of receiving bribes from officials of Halliburton, an American-based energy company.
Even though the US courts had convicted top officials of Halliburton for bribing some
Nigerian officials with sums amounting to $200 million for the purpose of obtaining
contracts worth billions of dollars from the Nigerian government; in contrast to the
decision in the United States, a Federal High Court in Abuja, struck out the case,
accusing the EFCC prosecutors of failure to diligently prosecute the case. Similarly, a
High Court of the Federal Capital Territory, Abuja, struck out the fraud charges filed
by the EFCC against Mr. Ndidi Elumelu, the former Chairperson of the House of
Representatives Committee on Power. The lawsuit which accused the lawmaker and
his co-accused of stealing some N5.2 billion budgeted for rural electrification was
dismissed by the judge who ruled that the accused had no case to answer45.
There are many more cases like those cited above and it has become apparent that
where PEPs and powerful public officials are concerned, the law enforcement
agencies are still struggling to achieve conviction. The Human Rights Watch stated
that the EFCC has had significant success in tackling private sector corruption, but
from a human rights standpoint, what is key, is public sector corruption because
44
Nigeria was rated Partially Compliant (PC) in its mutual evaluation report in 2008 on the FATF Recommendation
3 dealing with confiscation and provisional measures.The reasons advanced for this low rating included the lack
of definition of important concepts such as freezing, seizure, forfeiture and confiscation as well as inconsistency
in the laws relating to freezing of assets; Insufficient legal protection for bona fide third parties; and Absence of
rules to manage and dispose of confiscated properties.
45
Various reasons have been speculated to be the reasons for the inconclusive or unsuccessful prosecution of
cases involving high level political persons, including the lack of diligent prosecution by the respective agencies;
“political protection” for most of the offenders who are
seen as strong party stalwarts, and often allegations of compromise by judges.
endemic government corruption in Nigeria has undermined the basic rights of
millions of Nigerians46.
The Human Rights Watch47 also observed that "proven criminality" was “no bar” to
the highest echelons of politics in Nigeria. In spite of this criticism, the group
acknowledged that the EFCC was the most promising agency to confront corruption
in the country and had recovered some $11bn (£6.7bn) through its efforts in the eight
years since it was formed. These observations call for a new approach and strategy by
the enforcement agencies because until the legal and institutional
framework in which they operate is strengthened and they are fully
empowered to conduct investigations and prosecutions without
interference, they will continue to be ineffective where it matters –
i.e. tackling high level corruption.
Recovering the proceeds of crime is premised on evidence; that is, the existence of
assets. Thus, in order to conduct a successful recovery of criminal proceeds, assets
must be followed not only to their final hiding place, but causality must be established
between the asset and the criminal activity. The evolution of the Proceeds of Crime
(Recovery and Management) Act, 2022 serves as a klieg light in the utilization of
civil law to recover the proceeds of crime in Nigeria. The EFCC Act (2004) makes the
EFCC the coordinating agency for the enforcement of the provisions of various Acts 48
related to economic crimeand the Proceeds of Crime(Recovery and Management)
Act, makes provision for relevant agencies, this being inclusive of EFCC.
Confiscating and recovering the criminal assets and freezing of terrorist assets are
indispensable aspects of anti-money laundering and terrorist financing efforts. It is
important to send a signal to potential offenders that if discovered and convicted, they
46
Eric Guttschuss, “Leave Everything to God”; Accountability for Inter-Communal Violence in Plateau and Kaduna
States, Nigeria, Human Rights Watch, [December, 2013], <
https://www.hrw.org/reports/nigeria1213_reportcover_webUpload.pdf> accessed 1 July 2024.
47
Eric Guttschuss, “Leave Everything to God”; Accountability for Inter-Communal Violence in Plateau and Kaduna
States, Nigeria, Human Rights Watch, [December, 2013], <
https://www.hrw.org/reports/nigeria1213_reportcover_webUpload.pdf> accessed 1 July 2024.
48
(a) the Money Laundering Act 2011; (b) the Advance Fee Fraud and Other Related Offences Act 2004;(c) the
Failed Banks (Recovery of Debt and Financial Malpractices in Banks) Act, as amended;(d) the Banks and Other
Financial Institutions Act 2021, as amended:(e) Miscellaneous Offences Act; and(j) and other laws or regulations
relating to economic and financial crimes, including the Criminal Code,Penal Code, Administration of Criminal
Justice Act.
will not only be subjected to immediate custodial sentences of a substantial character,
but will also lose tainted property. Consequently, strengthening prosecutorial and
judicial capacity to achieving conviction and record successful asset recovery
constitutes an area of priority49.
Thank You.
49

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CIVIL AND CRIMINAL RECOVERY OF

PROCEEDS OF CRIME IN NIGERIA

Gen.Dr. Pat Vingir (Rtd).

3. What is a Civil Wrong?

4. When do Crimes and Civil Wrongs overlap?

5. Recovery of Proceeds of Crime under our

6. Recovery of Damages under our Nigerian Civil

7. Notable Nigerian Cases on Recovery of Proceeds

The definition of asset recovery captures all activities to

The 1988 United Nations Convention against the Illicit Traffic

Article 53 of the United Nations Convention against

(b) Take such measures as may be necessary to permit its courts to

The United Nations Convention against Corruption (UNCAC) being

(2) criminalization and law enforcement;

(3) asset recovery; and

(4) international cooperation.

The UNCAC explicitly identifies asset recovery as its

The greatest innovation of the Convention is contained in it’s

Article 51 UNCAC provides as follows8: “The return of assets

International law on the recovery of the proceeds of crime and its

Recommendation 4; Confiscation and Provisional Measures, enjoins

Together, the UNCAC and the FATF 40 recommendations

There is need to also note the Stolen Asset Recovery Initiative

a) domestic criminal prosecution and confiscation, which may where

b) NCB confiscation, which may where necessary, be followed by an

d) criminal prosecution and confiscation or NCB confiscation

The availability of these avenues, either domestically or in a foreign

Our Nigerian legislation prior to the enactment of the

7: The Commission has power to cause investigations to be

This section vests vast powers in the Commission for the

7(2): A person who commits an offence under subsection (1) of this

(a) in the case of a financial institution or corporate body, to a fine

(b) in the case of director, secretary or other officer of the financial

Section 7(5) AFF Act, provides as follows; A person who commits an

Prior to the Proceeds of Crime (Recovery and Management) Act,

To properly appreciate the criminal and civil recovery of proceeds of

Crime being a a deviation from the ordinary course of expected behaviour in a

Crime is defined by the Blacks Law Dictionary (2 nd Edition) as ‘an act

Blackstone15 has defined crime as “an act committed or omitted in violation of a

Halsbury16 providing a definition in The Laws of England defined crime thus; ‘a

Crime is an intentional act in violation of criminal law, which is committed without

 Crime is a wrong/legal wrong/wrong human conduct.

Crime is always followed by punitive/penal consequences as stated in its definitions.

Our Nigerian criminal legislation specifically the Administration of Criminal

The Penal Code of Northern Nigeria in Section 4(2)24 provides an explanation of

WHAT ARE CIVIL WRONGS?

In distinguishing Crime from Civil wrong it is essential to note that for an

2. DISTINGUISHING BETWEEN CRIME AND CIVIL WRONGS

He then submitted that if LD/329/88 succeeds, it means LD/4c/88 subsists; if M/87/88

 In Criminal proceedings the evidentiary burden proof is beyond reasonable

Preponderance of evidence is the greater weight of the evidence, not necessarily

 In criminal cases, after the conviction of the accused, the sentence is

3. WHEN CRIME AND CIVIL WRONGS OVERLAP

4. RECOVERY OF PROCEEDS OF CRIME UNDER CRIMINAL

Conviction was defined by Atkinson J. In R. V. LONDON COUNTY QUARTER

The Canadian sentencing commission in 1987 defined sentencing as the judicial

The Supreme Court in MOHAMMED V OLAWUNMI (1993) 4 NWLR Pt. 348

 The nature of the offence 

 Mandatory Sentence: Where the statute creating an offence prescribes a

It is therefore clear that a sentence of imprisonment for a period which is certain or