The Lagos Division of the Court of Appeal recently confirmed the constitutionality and validity of the Lagos High Court's granting of a proprietary injunction along with orders directing the defendants to swear to and file affidavits stating the location, nature and value of all assets that represented or were derived from the proceeds or fruits of certain transactions. The court pointed out that the rights guaranteed in the Constitution are not absolute and can be curtailed to protect the rights of other persons.
The federal government recently announced its intention to establish yet another anti-corruption agency. Given the ongoing accounting and management controversies surrounding assets which have reportedly been recovered by the existing agencies, there is reason to view this announcement with a degree of suspicion. If there is one thing that Nigeria does not need, it is another bureaucratic organ dealing with these matters.
In July 2020 the Federal High Court ordered the interim forfeiture of assets allegedly belonging to former Nigerian Social Insurance Trust Fund (NSITF) Chair Ngozi Olejeme. Despite this recovery step, the question remains as to why it took the Economic and Financial Crimes Commission so long to discover Olejeme's alleged connection to these particular assets. Since she left office, the NSITF has allegedly been deprived of more than N69 billion that could have been invested for the benefit of insured employees.
In June 2019 the Economic and Financial Crimes Commission (EFCC), as part of its investigation into the affairs of a former state governor, reported that it had frozen a number of bank accounts alleged to belong to the former governor which contained suspected public funds. In 2020 the EFCC reported that, to date, a total of N7.9 billion had been recovered from these accounts and more than N5.7 billion had been returned to the state government.
Nigerian entrepreneur Obinwanne Okeke has pleaded guilty to a computer-based intrusion fraud scheme. More than $11 million is said to have been traced to the ring, and it has been claimed that Okeke used proceeds from these activities to establish legitimate business enterprises in Nigeria. This follows from reports in 2019 that the Federal High Court in Lagos ordered that N280,500,000 in two bank accounts in Okeke's name be forfeited to the Nigerian government.
The Asset Tracing, Recovery and Management Regulations 2019 recently came into effect, replacing the existing Proceeds of Crime Regulation 2012. The regulations set out procedures for all law enforcement and anti-corruption agencies – which are supervised by the Attorney General's Office – to ensure the effective coordination of the investigation of illegally acquired assets and the proceeds of crime, among other things.
The High Court of England and Wales recently granted claimants in an arbitration leave to enforce an award against the Nigerian Ministry of Petroleum Resources. The media attention surrounding the decision prompted the Nigerian government to respond in a manner that has been described as unusual. One thing is clear: allegations of involvement in fraudulent conduct in matters relating to government contracts in Nigeria should not be unexpected.
Throughout August 2019 the Nigerian media heavily reported on the US government's actions against Nigerian nationals who have been accused of committing various acts of fraud. Of particular note is the arrest of a successful Nigerian entrepreneur and the US Department of Justice's recent federal grand jury indictment against 77 named and three unnamed individuals reported to be Nigerians.
During Federal Attorney General Abubakar Malami's recent confirmation appearance before the Senate he was asked why the administration had failed to comply with court orders and responded that they were not in the public interest. Although heavily criticised, Malami's statements are unsurprising, given how he used Executive Order 6 in his first term to indiscriminately prevent persons not accused of wrongdoing from accessing bank accounts without recourse to the courts.
After years of inaction and many questions as to why the Nigerian authorities have done nothing to pursue Nigerian wrongdoers in a 21-year corruption case involving oil giant Shell Nigeria Ultra Deep Limited and Italian company ENI SpA, it appears that the Nigerian authorities have finally decided to pursue criminal proceedings against Nigerian parties. In April 2019 the Abuja High Court issued orders for the arrest of former Petroleum Minister Dan Etete Etete and Attorney General Mohammed Bello Adoke.
Recent reports about developments in an ongoing corruption case in Italy, which alleges corruption in Nigeria by oil giants Royal Dutch Shell and Italian company Eni, have increased speculation as to whether any meaningful proceedings relating to the matter will ever be brought in Nigeria. There appear to be numerous issues in respect of which inquiries might be undertaken.
In 2014 $321 million which had been amassed in Luxembourg by Nigeria's former head of state was frozen. Although the government did not need to enlist external counsel to recover the money, the federal attorney general engaged local lawyers, whose only qualifications were alleged to have been that they had both worked with the attorney general while he was legal adviser to President Buhari's political party. This is just one in a series of embarrassing situations involving Buhari's government.
Although corruption in the ranks of Nigerian judicial officers has long been considered an issue, the authorities have been accused of lacking any genuine desire to address the problem. Although the National Judicial Council occasionally penalised judges, no judges were prosecuted. All that changed in 2016, when a number of Nigerian judges were arrested on suspicion of corruption. More recently, the Court of Appeal dismissed corruption charges against another Federal High Court judge.
When the Federal Ministry of Finance's new whistleblowing programme was announced, an issue was identified with regard to the lack of clarity around how rewards will be calculated. Following this, there has recently been significant controversy surrounding a reward which may have been paid to an informant following the recovery of approximately $43 million under the programme. If the matter proceeds to litigation, it may provide some indication as to how the programme is actually being implemented.
Following media reports accusing the Nigerian Securities and Exchange Commission director general and two other senior officials of serious financial impropriety, the Federal Ministry of Finance recently announced the suspension of the accused officials pending investigations into the accusations. Regardless of whether the allegations are true, the commission has come under pressure in the past two years due to an increase in the number of market crises, which critics have attributed to failures in oversight.
President Buhari recently signed a number of agreements with the United Arab Emirates concerning extradition, the transfer of sentenced persons and mutual legal assistance. This is one of the first concrete steps that Buhari has taken to combat corruption and money laundering since taking office. According to reports, the government is seeking to use these agreements to effect the seizure of real estate in Dubai which allegedly belongs to the former petroleum minister.
The Economic and Financial Crimes Commission recently succeeded in obtaining two final forfeiture orders of property without there having been a prior conviction. It will be interesting to see how these orders are addressed if any contested applications for non-conviction-based forfeiture orders come before the courts, as neither case set out the grounds that empower the courts to make such orders.
The federal government continues to issue reports regarding the success of its whistleblower programme. As such, it was no real surprise when the Economic and Financial Crimes Commission recently reported the discovery of $43.4million, £27,800 and N23.2million in cash following a tip-off. However, despite the reports of seizures resulting from information provided by whistleblowers, no reports have suggested that anyone has received any part of the recovered monies.
In October 2016 a number of senior judges from all levels of Nigeria's superior courts of record (ie, the High Court, the Court of Appeal and the Supreme Court) were arrested. Of the seven judges arrested, only two have been charged to date. Of these two, one was recently discharged following a no case submission by his counsel. This reversal must have been embarrassing for the government, given the manner in which it conducted the operation to arrest the judge.
The whistleblower policy unveiled at the end of 2016 is already producing results. The government has recovered a significant amount of stolen funds, including the amount recovered from a property owned by the former group managing director of the Nigerian National Petroleum Corporation. This must have been embarrassing for the government, as money laundering charges against the official were withdrawn in 2016. The basis of the decision to withdraw those charges must now be examined.