By Samuel A. Oguntuyi, Esq.
INTRODUCTION
Corruption remains one of the most pervasive threats to governance, economic development and public trust in Nigeria.
According to transparency. Corruption Perceptions Index (CPI) 2025, released on 10 February 2026 and retrieved on 11th February 2026, Nigeria scored 26 out of 100. This places Nigeria at 142nd out of 182 countries assessed globally. (https://files.transparencycdn.org/images/CPI-2025-Report-EN.pdf). In the same vein, PricewaterhouseCoopers (PwC) projects that corruption could reduce Nigeria’s GDP by up to 37% by 2030 if systematic leakages remain unchecked. (https://www.pwc.com/ng/en/assets/pdf/impact-of-corruption-on-nigerias-economy.pdf?utm_source=chatgpt.com).
Nigeria commenced its domestic anti-corruption campaign in a democratic setting in the year 2000 when the then former President Olusegun Obasanjo, GCFR-led administration set up the Independent and Corrupt Practices and Other Related Offences Commission (ICPC). The Commission derives its statutory existence from the Corrupt Practices and Other Related Offences Act 2000, Chapter C31, Laws of the Federation of Nigeria (LFN), 2004 which was signed into law on 13th June, 2000. The ICPC was subsequently inaugurated on the 29th of September, 2000 by former President Olusegun Obasanjo, GCFR. (https://icpc.gov.ng/wp-content/uploads/2024/10/FAQs.pdf).
Following the establishment of the ICPC, Nigeria further demonstrated its resolve to strengthen its anti-corruption frameworks by establishing the Economic and Financial Crimes Commission (EFCC) on 12th December, 2002. (https://www.efcc.gov.ng/Overview).
The Country further consolidated its anti-corruption framework at the international level by acceding to the United Nations Convention against Corruption (UNCAC) in 2003. Nigeria signed the Convention on 9th December, 2003 and ratified it on 24th October, 2004. (https://www.unodc.org/conig/en/stories/fast-tracking-the-effective-implementation-of-the-united-nations-convention-against-corruption-in-support-of-the-sustainable-development-goals.html). The convention, adopted in New York City, established the global normative framework for innovative mechanisms asset recovery mechanisms, including the Non-Conviction-Based (NCB) Asset Forfeiture procedure.
Article 54(1)(c) of the UNCAC provides as follows:
- Each State Party, in order to provide mutual legal assistance pursuant to article 55 of this Convention with respect to property acquired through or involved in the commission of an offence established in accordance with this Convention, shall, in accordance with its domestic law:
(c) Consider taking such measures as may be necessary to allow confiscation of such property without a criminal conviction in cases in which the offender cannot be prosecuted by reason of death, flight or absence or in other appropriate cases.
The innovative non-conviction-based asset forfeiture mechanism is designed to counter the ingenuity and/or sophisticated methods employed by perpetrators of economic crimes in concealing corruptly acquired assets, which said methods often frustrate the state’s recovery efforts. The (NCB) asset forfeiture in Nigeria is principally regulated by the Corrupt Practices and Other Related Offences Act, 2000 (ICPC Act, 2000), Proceeds of Crime (Recovery and Management) Act, 2022 (POCRMA, 2022), and the Advance Fee Fraud Act and Other Fraud Related Offences Act, 2006 (AFFA 2006). Other associated statutes include the Economic and Financial Crimes Commission (Establishment) Act, 2004 (EFCC ACT, 2004), Money Laundering (Prevention and Prohibition) Act, 2022 (MLA, 2022), amongst other related laws.
The (NCB) asset forfeiture procedure remains one of the most effective tools in contemporary anti-corruption efforts. Being an action brought in rem (“against the property”) rather than in personam (“against the person”), the State is empowered to confiscate assets suspected to be proceeds of crime without the prerequisite of securing a criminal conviction. The statutory foundation for NCB asset recovery procedure in England and Wales is Section 240 of the Proceeds of Crime Act, 2002 which states thus:
“240 (1) This Part has effect for the purposes of:
- enabling the enforcement authority to recover, in civil proceedings before the High Court or Court of Session, property which is, or represents, property obtained through unlawful conduct.”
Similarly, on the home front of Africa, the Republic of South Africa pioneered the contemporary African model of (NCB) asset forfeiture procedure with its enactment of the Prevention of Organized Crime (POCA) Act 121 of 1998. See Chapter 6, Parts 1 and 2; specifically, Sections 37(1), 38 and 50(1)-(4) of the said Act.
The imprimatur for this innovative legal principle in Nigeria is contained in Section 1(1)(c) of the POCRMA 2022 provides as follows:
“1.(1) The objectives of this Act are to:
- make provisions for non-conviction based procedure for the recovery of proceeds of crime”
It is also firmly settled that the NCB asset forfeiture procedure constitute civil proceedings. See PART IV Section 8(1)(a) of the POCRMA, 2022 which provides that the NCB proceedings shall be civil. The Supreme Court of the Republic of Ireland in Gilligan v. Criminal Assets Bureau (2011) 1ESC 82 lend considerable weight to this view when it held that in rem proceedings for the forfeiture of property, even when accompanied by parallel procedures for the prosecution of criminal offences arising out of the same events, are civil in nature.
Similarly, the Court of Appeal of Nigeria upheld this entrenched principle when it held in the case of Alison Madueke v. EFCC (2024) 1 NWLR (PT. 1918) 101 at P. 131, Paras. A-B, per J.S. Ikyegh, J.C.A (of blessed memory)
thus:
“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 and could be taken concurrently.”
On the purpose of in rem civil forfeiture, the Supreme Court of Nigeria in the case of Jonathan v. FRN (2019) 10 NWLR (Pt. 1681) 533 at P570 Para. A, held per Aka’ahs, J.S.C. (as he then was) as follows:
“Civil Forfeiture, which is in rem as opposed to the confiscation of assets which have been frozen, is embarked upon when the interest of the state is to recover the proceeds of unlawful activity.”
Stages of (NCB) civil forfeiture
This non-conviction-based (NCB) civil forfeiture procedure generally encompasses two distinct stages: the Interim Stage and the Final Forfeiture Stage. The Interim Stage ordinarily vests on the prosecution or the State the right to obtain preservatory, freezing, or interim attachment orders over property reasonably suspected to constitute the proceeds or instrumentalities of crime, pending notice to, and an opportunity for, the affected person or interested party to appear and show cause why the property should not be forfeited to the State. See Sections 9, 10, 11 and 12 of the POCRMA, 2022; Section 17(2)(3) of the AFFA, 2006 as well as Sections 48(1) and (2) of the ICPC Act, 2000.
The final forfeiture stage arises where, upon consideration of the evidence and any representations made by the affected party, the court is reasonably satisfied that the property is unlawfully acquired or linked to any criminal activity, the Court accordingly makes an order for its permanent forfeiture. See Sections 17-22 of the POCRMA, 2022; Section 17(4) of the AFFA, 2006; Section 48(3)(a)(b) of the ICPC Act, 2000.
The Conundrum of Lower Standard of Proof
A common thread that runs through the legal regimes governing the NCB asset forfeiture procedure, as well as the judicial trend, is that a lower standard of “balance of probabilities” is adopted over “beyond reasonable doubt”. This remains one of the most difficult jurisprudential tensions in asset recovery law because it sits at the intersection of civil procedure and criminal accusation.
As earlier expressed, by virtue of section 8(1)(a) and (b) of the POCRMA, 2022, NCB proceedings are expressly classified as civil proceedings, and that the applicable standard is the civil threshold of balance of probabilities, not proof beyond reasonable doubt. This position mirrors the UK regime under sections 240 and 241(3) of the Proceeds of Crime Act 2002, where the court is similarly required to determine recovery of property constituting proceeds of unlawful activity on the balance of probabilities.
The legal conundrum, however, lies in substance rather than in form. This is because even though the action is framed in rem against the property, the factual basis of the proceedings is almost always predicated upon allegations of criminality (i.e. fraud, bribery, money laundering, corruption, etc). This raises the argument that where criminal conduct constitutes the foundation of the claim, the constitutional criminal standard ought to apply. In Nigeria, that argument draws force from section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and section 135(1) of the Evidence Act 2011, both of which preserve the presumption of innocence and require proof beyond reasonable doubt where a crime is in issue respectively.
The counter-position, consistently adopted by courts, however, is that the NCB forfeiture does not seek to establish personal guilt but merely the tainted character of the property. This distinction was emphatically underscored in the recent case of Melrose General Services Ltd. v. EFCC (2025) 1 NWLR (Pt. 1972) 1 at page 119, Paras. A-C where the Supreme Court of Nigeria Per Ogbuinya, J.S.C held thus:
“… In essence, an NCB forfeiture is an instrument of war against corruption: a polymorphous concept which has, with the constant aid of its leprous tentacles, wreaked immeasurable havoc on all the facets of the society across the world. It is a tool to wrestle and tame corruption globally. It is an arsenal against corruption which is usually targeted basically against the property and not its owner. It presumes that it is the property, a legal fiction par excellence that contravened the law, not its owner. A criminal charge or conviction against the owner is of no moment in an NCB forfeiture proceeding.”
The Court therefore recognised forfeiture as a legitimate anti-corruption mechanism ancillary to public accountability.
In the UK, the House of Lords in the case of Regina v. Rezvi [2002] UKHL 1 rejected the argument that confiscation infringes the presumption of innocence, holding that confiscatory proceedings concern the benefit derived from crime rather than the determination of criminal liability. This reasoning has significantly influenced the Nigerian jurisprudence. The simple logic behind the Court’s reasoning is that since a piece of land or monies in a bank account cannot be imprisoned, the courts hold that the tenors of Section 135(1) of the E.A. 2011 are not triggered. Hence, in line with the provisions of Section 17(1) of the AFFA, 2006, Sections 9 and 19 of POCRMA 2022, once the prosecution establishes by reasonable suspicion a prima facie case that an asset is unconnected to any legitimate income, an interim forfeiture is granted. The burden of proof then shifts to the claimant to show the legitimacy of the source of funds. In the ensuing consequence, Courts view this as an application of Section 136 of the E.A. 2011 (burden of proof as to particular facts), rather than a violation of Section 135(1) of the E.A.
Weaknesses in the Current Framework
Despite judicial endorsement, the lower standard of proof in NCB proceedings remains highly vulnerable to procedural unfairness. Moreso, this legal “by-pass” creates a profound tension within the bedrock of Nigerian evidence law- the Evidence Act, 2011 (E.A. 2011). For instance, Section 135 of the E.A., 2011 unambiguously provides:
- if the commission of a crime by a party is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.
As captured above, Section 135(1) specifically mentions “any proceeding, civil or criminal”. By creating an exception for in rem civil asset forfeitures, the judiciary thereby tends towards judicial legislation. If the legislature intended to exempt asset forfeiture from the rigorous standard of Section 135(1), it ought to have explicitly carved out an exception within the Evidence Act itself through an amendment. The legislature could also by an express clause in the requisite anti-graft statutes (AFFA, 2006, POCRMA, 2022, et al) spell out that the in rem NCB proceedings are entirely insulated from the rules of evidence applicable to criminal trials. A prime model for this legislative clarity can be found in Section 37(1)(2)(3) and (4) of South Africa’s Prevention of Organised Crime Act (POCA), No. 121 of 1998, which explicitly insulates its asset forfeiture framework from criminal evidentiary standards by stating:
“37. (1) For the purposes of this Chapter all proceedings under this Chapter are civil proceedings, and are not criminal proceedings.
(2) The rules of evidence applicable in civil proceedings apply to proceedings under this Chapter.
(3) No rule of evidence applicable only in criminal proceedings shall apply to proceedings under this Chapter.
(4) No rule of construction applicable only in criminal proceedings shall apply to proceedings under this Chapter.”
Although the enactment of the POCRMA, 2022 attempts to obscure this omission by stating in Section 8(1) that the provisions of the Act shall be civil proceedings; and that the standard of proof required in the NCB proceedings shall be on a balance of probabilities; these provisions are inadequate to override the strict and absolute mandate of Section 135(1) of the E.A. Because Section 8(1) merely labels the forum and procedure as civil, it fails to legally displace the reality that the commission of a crime is still “directly in issue” when determining if an asset is the “proceeds of an unlawful activity.” In the resulting circumstance, Nigeria’s POCRMA, 2022 relies on a superficial civil classification in the said Section 8(1). The absence of an unambiguous, definitive statutory intervention within Nigeria’s primary evidentiary framework leaves the lower standard of proof in domestic NCB proceedings structurally weak and vulnerable to perpetual statutory challenges, notwithstanding the recurrent judicial affirmations.
What is more? Though courts often classify NCB as civil, its effects are punitive. The distinction between targeting a person and targeting their property is often a legal fiction. A final forfeiture order permanently divests an individual of their proprietary rights without a criminal conviction. To suggest that a crime is not “directly in issue” when the state explicitly labels cash in the bank as “proceeds of crime” is tantamount to making a distinction without a difference. For instance, to assert that a house is “proceeds of unlawful activity” is to implicitly allege that the owner participated in or benefited from a crime (e.g., money laundering, graft and its likes). On the face value, the reputational damage and financial ruin on the property owner resembles criminal sanctions, yet they are achieved via a lower procedural threshold. By labelling these proceedings “civil” to apply a lower standard of proof, the state effectively bypasses the high evidential bar intended to protect citizens from arbitrary expropriation of property.
The Reverse Onus Paradox
Notwithstanding the silence of the NCB statutes on the applicability of section 135(1) of the Evidence Act, the real constitutional anxiety, however, stems from the practical reverse onus embedded in NCB proceedings. As a general rule, the burden of proof lies on the prosecution in a criminal case. See Woolmington v. DPP (1935) AC 462, per Viscount Sankey LC. However, it is trite that in civil forfeiture proceedings, evidential proofs are based on preponderance of evidence of balance of probabilities section 8(1)(b) of the POCRMA, 2022.
The reverse onus clause therefore can be simply explained to mean a clause in a statute that shifts the burden of proof, wholly or partly, from the party who ordinarily bears it (e.g the prosecution) to the defendant or respondent. The Supreme Court of Nigeria in the case of Melrose General Services Ltd. v. EFCC (supra) provided justification for this principle when it held per Abiru J.S.C. at Page 160, Paras. D-G thus:
“In Gilligan v. Credit Asset Bureau (supra), the reversal of onus of proof is justifiable because such reversal only comes into operation after the establishment of certain issues to the court’s satisfaction and that there is no constitutional infirmity in the procedure whereby the onus is placed on a person seeking property to negate the inference from evidence adduced that unlawful activity has been committed. Further, public policy supports the reversal of the onus of proof in recovery of proceeds of unlawful activity actions.”
However, it is instructive to state that the legitimacy of the reverse onus principle in civil forfeiture proceedings ultimately depends on whether the courts maintain rigorous scrutiny of the State’s initial burden before shifting any evidential obligation to the respondent. Otherwise, this has the tendency of unduly vesting on the state an unrestrained licence to label every property in the country as being tainted. This responsibility on the court to rigorously scrutinize whether the prosecution has discharged this legal burden to its utmost satisfaction finds root in the entrenched judicial rule that any law that restricts or encroaches on a person’s right to property is applied strictissimi juris. See Provost, Lagos State College of Education v. Edun (2004) 6 NWLR (Pt. 870) 476; Melrose General Services Ltd. v. EFCC (supra).
Shifting burdens, reverse onus and fragile justice of civil forfeiture against the dead
In addition to its underlying objective, the NCB forfeiture procedure is designed precisely for scenarios where a criminal conviction is impossible because the suspect is dead, absent, or unknown. See Article 54(1)(c) of the UNCAC, Ss. 24, 52(4) of the POCRMA, 2022. Additionally, the application of a reverse onus structure which stipulates that once the State establishes reasonable suspicion or prima facie fact of unlawful activity, the burden shifts to the respondent to explain lawful acquisition presupposes that the person with knowledge of the property’s origin is alive. However, where the owner is dead, this would imply that the person with primary knowledge is unavailable. In the circumstance, the estate may have incomplete records and beneficiaries may also have no personal knowledge of acquisition of the asset under investigation. It would then appear that a situation of evidential impossibility may have been occasioned. Consequently, since the law does not compel the performance of the impossible (lex non cogit ad impossibilia), to demand explanation from persons who lack the deceased’s personal knowledge would be tantamount to imposing a procedural burden against factual disability. This is not mere procedural inconvenience; it goes to the root of justice.
In this peculiar circumstance, substantial justice demands legislative reform to address the evidential vacuum created by the death of the property owner before any opportunity to contest forfeiture. The law ought to recognize an exception whereby the criminal threshold of proof beyond reasonable doubt is made to apply in this peculiar situation. Alternatively, the State could also be obligated to first establish a compelling prima facie connection between the property and criminality before activating any reverse burden. Anything less would unfairly compel surviving representatives to answer for matters lying exclusively within the personal knowledge of the deceased, thereby striking at the very foundation of justice.
CONCLUSION
The necessity of stripping corrupt beneficiaries of their ill-gotten gains is indisputable. However, the pursuit of judicial efficiency must not come at the expense of established legal protections. If NCB forfeiture is to remain a legitimate tool, the courts must strictly scrutinize the state’s initial “reasonable suspicion.” A standard of proof that hovers too close to mere conjecture risks transforming asset recovery into a revenue-generation exercise for the state, undermining the very rule of law it seeks to protect. True justice requires that even in civil proceedings, where the underlying allegation is criminal, the weight of the evidence must be substantial enough to prevent the “civil” label from becoming a mask for substantial injustice.
The author, Samuel Oguntuyi, Esq. is a Senior Associate at Y.C. Maikyau & Co. and can be reached via [email protected] and +2348132386317.
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