Proceeds of Crime (Recovery and Management) Act of 12 May 2022 No. 16 has the following provisions:
Seizure, confiscation and disposal of property derived from unlawful activities
The key novelty of the Act consists in the establishment of a mechanism for non-conviction-based forfeiture of assets derived from unlawful activities (hereinafter, unlawful assets).
As per the new mechanism, the court, upon the request of competent public bodies in the framework of civil proceedings, can issue a preservation order with regard to the assets which are reasonably believed to:
- be proceeds of unlawful activities regardless of whether they are possessed by a person accused of an offence or have been transferred to a third party;
- be the instrumentality or the subject of the commission of the offence;
- be unclaimed property.
After the order is issued by the court, the relevant assets are to be transferred under the management of dedicated division of competent public bodies.
The court can oblige them to appoint property managers whose functions will include, in particular:
- conduct of business, other entrepreneurial activities if the asset seized is this business/these activities;
- sale or other means to avoid deterioration of perishable assets or those subject to different forms of damage or to dispose of them in the event that it is not considered expedient to keep them etc.
Until the preservation order expires, competent public bodies can request the court to confiscate all or a part of the seized assets, and the court can issue a forfeiture order in civil proceedings if, based on the balance of probabilities, it is established that the relevant assets:
- constitute directly or indirectly proceeds of unlawful activities;
- were used to facilitate unlawful activities.
After the forfeiture order is issued, the relevant assets are to be transferred under the possession of dedicated divisions of competent public bodies. These divisions must dispose of the assets by selling them or in any other way and transfer the funds raised and the money forfeited to a designated account.
The competent body can request the court to issue a restraint order in the event that:
- the defendant is convicted of a crime (accused of a crime) and a confiscation order is issued with regard to his/her assets or the court has reasonable grounds to believe that this order can be issued;
- the defendant is accused of a crime and the court is convinced that he/she is guilty and has reasonable grounds to believe that a confiscation order can be issued with regard to the assets of the defendant;
- the request is supplemented by a document providing reasonable grounds to prohibit the disposal of the assets.
Confiscated and Forfeited Properties Account
The Act provides for the establishment of a designated Confiscated and Forfeited Properties Account in the Central Bank of Nigeria in criminal and civil proceedings, to which the following means will be transferred:
- money realised from the proceeds of sale, management or other form of disposal of forfeited assets;
- proceeds of any property forfeited deriving from abuse of functions or corruption;
- money received from other jurisdictions under arrangements of mutual legal assistance in criminal cases or repatriation of proceeds of unlawful activities;
- money paid to the relevant public bodies on behalf of the Federal Government in settlement of proceedings connected with the Act and other relevant laws.
Establishment of dedicated divisions
Under the Act, the functions to confiscate and recover unlawful assets, manage and dispose of them are assigned to the dedicated Proceeds of Crime Management Directorates which are to be established in a number of public bodies, including:
- the Economic and Financial Crimes Commission;
- the Independent Corrupt Practices and other Related Offences Commission;
- the Code of Conduct Bureau;
- the Nigeria Police Force;
- the Department of State Services and others.
The functions of these Directorates will cover:
- due and effective management of unlawful assets forfeited to the Federal Government also with the participation of asset managers appointed by them;
- set standards to be applied in the handling of unlawful assets;
- ensure accountability in the management of unlawful assets;
- recommend training on the management of unlawful assets and related matters.
Besides the establishment of the abovementioned divisions, the objectives of the competent public bodies will consist in:
- establishing and maintaining databases of all assets seized and recovered by these bodies and asset managers, auctioneers, insurers, and other necessary support services;
- working with the Federal Ministry of Justice to negotiate the return and management of unlawful assets seized from foreign countries on behalf of the Federal or State Governments, or any other victim or for the benefit of Nigerians, as well as collaborating with other government bodies outside Nigeria that are carrying on similar functions;
- ensuring reparations to victims of offences, where proceeds have been recovered etc.
The Act also contains provisions on liability for failure to comply with the established requirements:
- a person who knowingly disposes of assets subject of a restraint order is liable on conviction to imprisonment for a term of two years or a fine of at least N 5,000,000 (roughly USD 12,500) or both;
- a person who discloses information that can damage court proceedings, falsifies, conceals, destructs or performs other actions relating to the documents relevant to the proceedings or allows such actions is liable on conviction to imprisonment for a term not more than two years or a fine of at least N 2,000,000 (roughly USD 4,600) or both;
- a person who refuses an authorised officer access to any premises, or fails to submit to a search by a person authorised to search him/her, assaults or obstructs any authorised officer in the execution of search and seizure warrant, conceals or attempts to conceal from an authorised officer any document or article related to an offence or which is liable to seizure etc. is liable on conviction to imprisonment for a term of at least two years or a fine of N 5,000,000 or both.