An appraisal of the legal and institutional frameworks for the management of seized and forfeited assets in Nigeria

The effective management of seized and forfeited assets is a vital component of asset recovery programmes. It ensures that the assets are not only preserved but also optimised pending the conclusion of the confiscation proceedings and the return of the assets to their legitimate owners. However, without sound legal and institutional frameworks, it may be difficult to effectively manage these assets (Bostwick et al, 2023). The legal framework states how the assets should be preserved, while the institutional framework establishes and empowers relevant agencies to manage the assets (Bostwick et al, 2023). It is in furtherance of this that the United Nations Convention against Corruption (UNCAC) obligates States Parties, subject to their domestic laws, to adopt legislative and other measures to regulate the administration of frozen, seized or confiscated property by competent authority [Article 31 (3) of UNCAC]. A review of the implementation of UNCAC, however, showed that most of the States Parties, including Nigeria, have challenges in implementing this provision (Olujobi, 2021; UNODC, 2017).

Before the enactment of the Proceeds of Crime (Recovery and Management) Act of 2022 (POCA), Nigeria did not have effective legal and institutional frameworks for the management of seized and forfeited assets. A number of laws, such as the Economic and Financial Crimes Commission (Establishment) Act of 2004, and the Independent Corrupt Practices and Other Related Offences Commission Act, have provisions on the management of seized and forfeited assets. However, the provisions of these laws have flaws which undermined their effectiveness (Waziri-Azi, 2020). As a result of these flaws, seized and forfeited perishable assets were poorly managed, leading to avoidable wastage (The Punch, 2024). Another problem that undermined the management of seized and forfeited assets was the lack of accountability and transparency (Sproat et al, 2024; Esoimeme, 2020). For example, the Presidential Committee on the Audit of Recovered Assets alleged that the then acting chairman of the Economic and Financial Crimes Commission could not account for 332 out of the 836 recovered properties (The Premium Times, 2020). Apart from these, the sale of some forfeited assets was tainted with corruption as some public officials charged with the duty of disposing of these assets allegedly sold them to their cronies below prevailing market prices (The Punch, 2024).

However, with the coming into force of POCA, the flaws in the management of seized and forfeited assets appear to have been addressed. One objective of POCA is the provision of effective legal and institutional frameworks for the management of proceeds of crime (Section 1(1)(a) of POCA). Against this background, this article examines the legal and institutional frameworks for the management of seized and forfeited assets. This article is divided into three parts. The first part of this article explores the provisions of laws that regulated the management of seized and forfeited assets before the coming into force of POCA, highlighting their flaws. The second part of this article examines the provisions of POCA on the management of seized and forfeited assets, identifying how they address the gaps in the legal and institutional frameworks for the management of these assets. The last part of this article contains the conclusion and recommendations on measures that could be taken to ensure effective management of these assets.

The laws that regulated the management of seized and forfeited asset before the enactment of POCA are the Economic and Financial Crimes Commission (Establishment) Act of 2004 (the EFCC Act), the Independent Corrupt Practices and Other Related Offences Commission Act (the ICPC Act), the National Drug Law Enforcement Agency Act (NDLEA Act) and the Administration of Criminal Justice Act of 2015 (the ACJA). This part of the article examines the relevant provisions of these laws, highlighting their flaws.

The Economic and Financial Crime Commission (Establishment) Act of 2004 (EFCC), which was enacted in 2004, establishes the Economic and Financial Crimes Commission (the EFCC), one of Nigeria’s main anti-corruption agencies. The EFCC is empowered to investigate and prosecute persons that are suspected to have committed financial crimes [Section 6 (b) of the EFCC Act]. In furtherance of this, the EFCC may seize any asset that is suspected to be proceeds or instruments of crime (Sirajo, 2021). Upon the seizure of the asset, the EFCC may take the asset into its custody or “place it under seal” [Section 26 (2) of the EFCC Act]. The EFCC Act, however, does not state how these assets, particularly the perishable one, should be managed (Sirajo, 2021). It does not make a provision for the sale of perishable seized assets. Neither does it empower the EFCC to put non-perishable assets into any profitable use. As a result of this flaw, many perishable assets that were seized by the EFCC were poorly managed (The Punch, 2024).

The EFCC Act also empowers the EFCC to apply to a court for an interim forfeiture/a preservation order of assets it suspects to be proceeds of crime pending the conclusion of the criminal proceeding (Sirajo, 2021). However, the EFCC Act does not provide for the management of these assets. The EFCC Act, however, contains provisions on the disposal of assets which are subject of final forfeiture orders (Section 31 of the EFCC Act). Specifically, the EFCC Act empowers the Secretary of the EFCC to dispose of forfeited assets “by sale or otherwise” [Section 31 (1) (2) of the EFCC Act]. The word “otherwise” in this provision has been construed by the EFCC to include social reuse (The Cableng, 2020). However, apart from social reuse, the meaning of “otherwise” in this context could also include disposal by destruction (Bostwick et al, 2023). Social reuse is the use of confiscated assets for public welfare and social purposes (Bostwick et al, 2023). There are two types of social reuse of forfeited assets: direct and indirect (Vettori, 2018). On the one hand, a direct social reuse of confiscated assets is the transfer of confiscated assets for the use of public agencies or charitable organisations (Vettori et al, 2014). For example, a confiscated car could be given to law enforcement agency (Vettori, 2018). On the other hand, indirect social reuse of confiscated assets refers to the use of proceeds from the sale of the forfeited assets for social welfare programmes (Vettori, 2018). For example, the proceeds from the sale of forfeited assets can be used to fund government social welfare programmes.

If the EFCC chooses to dispose of the assets through sale, upon the sale of the assets, the proceeds must be paid into the Consolidated Revenue Fund of the Federation [Section 31 (2) of the EFCC Act]. The Consolidated Revenue Fund of the Federation is established by section 80(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, and money paid into this fund is deemed to exclusively belong to the federal government. However, forfeited assets sometimes belong to states government or private individuals (Greenberg, 2009). Where forfeited assets belong to a state or a private individual, upon the sale of these assets, their proceeds ought to be paid to the state or the private individual. However, the payment of the proceeds into the Consolidated Revenue Account of the Federation undermines this. This is because no money can be withdrawn from this fund except it is authorised by an Act of the National Assembly [Section 80 (3) of the Nigerian Constitution]. The National Assembly has not enacted any law on how funds that do not belong to federal government but which are paid into this account is to be dealt with (Shittu, 2020). The implication of this is that where a state government or a private individual is the legitimate owner of money paid into the Consolidated Revenue Fund of the Federation, such an entity may not be able to recover the money (Shittu, 2020).

Apart from these, the EFCC Act does not provide an effective institutional framework for the management forfeited assets (Olujobi, 2021). Rather than establish a separate unit or department to oversee the sale of forfeited assets, the EFCC empowers an individual - the secretary of the EFCC, to dispose of forfeited assets (Sirajo, 2021). The office of the secretary is in Abuja, the headquarters of the EFCC (Section 8 of the EFCC Act), while forfeited assets are scattered all over Nigeria. Considering the nature, number and the location of these assets, an individual cannot effectively carry out this duty. The next part of this article examines the relevant provisions of the Corrupt Practices and Other Related Offences Commission Act of 2000 on the management of seized and forfeited assets.

The ICPC Act, which was enacted in 2000, establishes the Independent Corrupt Practices and Other Related Offences Commission (the ICPC) (Section 3 (1) of the ICPC Act). The ICPC is charged with the investigation and prosecution of persons who engage in corruption, and in carrying out these functions, its officers are empowered to seize assets that are suspected to be proceeds of corruption [Section 5(1) and 6 of the ICPC Act]. With a view to ensuring effective management of these assets, the ICPC Act provides that seized assets must be moved from the custody or control of the person from whom it was seized and placed in the custody of any person or authority specified by an officer of the ICPC (Section 38 of the ICPC Act). However, if it is not practicable or desirable to do so, the assets may be left in the custody of the person from whom they were seized (Section 38 of the ICPC Act). This suggests that the ICPC must carry out an assessment of the assets to determine whether it practicable or desirable for it to take them into its custody. This assessment is a part of pre-seizure planning that a law enforcement agency needs to carry out with a view to determining the economic viability and desirability of taking seized into its custody (UNDOC, 2023).

If the ICPC decides to leave the assets in the custody of the person from whom they were seized, the person must provide sufficient security for the assets [Section 38 (3) (a) and (4) of the ICPC Act]. Upon demand, if the person is unable to produce the assets, the security must be forfeited [Section 38 (3) (a) and (4) of the ICPC Act]. In addition, the person is liable to a fine and imprisonment for a maximum of two years [Section 38 (3) (a) and (4) of the ICPC Act]. These provisions are laudable as they transfer the duty and risks of managing seized assets to the person from whom the assets were seized. However, if the ICPC takes the seized assets into its custody and the assets are likely to decay or deteriorate, they may be sold [Section 38 (7) of the ICPC Act]. Apart from this, seized assets that are difficult to maintain as well as those that are impracticable to maintain may also be sold [Section 38 (7) of the ICPC Act]. On the one hand, an asset may be said to be difficult to maintain if the costs that would be incurred in maintaining them would be more the market value of such assets (Bostwick et al, 2023; UNODC, 2023). On the other hand, an asset can be said to be impracticable to maintain if its preservation is likely to result in a substantial loss of its value or have considerable negative impacts on its uses or functions (Bostwick et al, 2023; UNODC, 2023). Examples of such assets include yachts, aircraft and exotic animals.

The ICPC Act further provides that these three categories of assets should be sold at the prevailing market prices [Section 38 (7) of the ICPC Act]. This is commendable as it will ensure that the assets are not sold at give-away prices. After the assets have been sold, the official must deduct the expenses that the ICPC incurred in the maintenance and sale of the assets from the proceeds of the sale and thereafter, hold the balance [Section 38 (7) of the ICPC Act]. This provision has several weaknesses. Firstly, unlike what is obtainable in most jurisdictions, a court order or the consent of the owner of the assets is not required before perishable seized assets could be sold (UNODC, 2023). The question on whether some seized assets are liable to decay, deteriorate or cannot be maintained without difficulty is subjective. Hence, it ought to be determined by an independent body, such as a court (Bostwick et al, 2023). The discretion given to an officer of the ICPC to determine whether seized assets are perishable or may be difficult or impractical to maintain without any form of checks and balances is vulnerable to abuse.

Secondly, the ICPC Act empowers its officer to hold proceeds from the sale of seized asset, making it vulnerable to embezzlement [Section 38 (7) of the ICPC Act]. Apart from this, the ICPC Act does not address how assets that are subject of interim forfeiture orders, particularly the perishable ones, are to be managed. Also, the ICPC Act does not contain any provisions on the management and disposal of assets that are subject of final forfeiture orders. Furthermore, it does not state the bank account into which the proceeds of the sale of these assets are to be paid into. It is submitted that these flaws contributed to the lack of transparency and accountability that characterised the management of proceeds of the sale of these assets before the enactment of POCA. The next part of this article examines the relevant provisions of the National Law Drug Enforcement Agency Act on the management of seized and forfeited assets.

The National Drug Law Enforcement Agency Act (NDLEA Act) was enacted in 1998, and it criminalises the cultivation, processing, sale, trafficking and use of narcotic drugs in Nigeria (section 20 of the NDLEA Act). Also, it establishes the National Drugs Law Enforcement Agency Act (the NDLEA), the agency that is charged with the enforcement of the NDLEA Act (section 1 of the NDLEA Act). It empowers the NDLEA to seize property that are used in facilitating narcotic drug-related crimes as well the proceeds of these crimes (section 33 of the NDLEA Act). Unlike the EFCC Act and the ICPC Act, the NDLEA Act contains a subsidiary legislation which regulates the disposal of forfeited property. The subsidiary legislation which is titled “the National Drug Law Enforcement Agency (Disposal of Forfeited Assets and Properties) Regulations (the Regulations)” is in the fourth schedule to the NDLEA Act. The NDLEA Act and the Regulations both regulate the management and disposal of assets connected with narcotic-related crimes (section 38 of the NDLEA Act).

One notable omission in the provisions of the NDLEA Act and the Regulations is that they do contain any provisions on the management of seized assets. However, the Regulations contain some provisions on the management of property that are subject of interim forfeiture orders. Specifically, the Regulations empower the NDLEA to sell perishable assets that are subject of interim forfeiture orders [Para 12 (2) of the Regulations]. The Regulations further provide that the proceeds from the sale of the asset should paid into a special account that belongs to the NDLEA [Para 12 (2) of the Regulations]. However, if the person from whom the assets were seized is not convicted by the court, the NDLEA must return the proceeds from the sale of the property to him. The provision of the Regulations on pre-confiscation sale of tainted assets has a number of flaws. First, contrary to global best practice, no court order is required for pre-confiscation sale of such assets (Para 12 of the Regulations; Bostwick et al, 2023; UNODC, 2023). Second, only perishable assets could be sold under this provision (para 12 of the Regulations). Assets that may deteriorate in value, or that may be difficult to maintain as well as those that may not be economically viable to maintain cannot be sold (Para 12 of the Regulations). Furthermore, the NDLEA Act and the Regulations do not make provisions for assets that are subject of interim forfeiture orders to be put into productive use pending their final forfeiture.

The NDLEA Act contains provisions on the disposal of forfeited assets. The NDLEA Act empowers the secretary to the NDLEA to disposed of forfeited assets by sale or otherwise, and thereafter pay the proceeds from the sale into the consolidated Revenue Funds of the Federation. One main flaw in this provision is that the NDLEA Act does not provide an effective institutional mechanism for the disposal of forfeited. Rather, like the EFCC Act, it empowers an individual to administer the disposal of forfeited assets (section 38 of the NDLEA Act). Furthermore, like the NDLEA Act, the Regulations also contains provisions on the disposal of forfeited assets. However, the provisions of the Regulations appears to contradict that of the NDLEA Act.

Unlike the NDLEA Act which empowers the secretary of the NDLEA to dispose of forfeited assets, the Regulations empower the chairman of the NDLEA Act to appoint “a panel comprising three persons of unquestionable character, to organise the public auction of all forfeited assets and properties (para 12 of the Regulations). Based on this provision, it is submitted that the Regulations empowered the Chairman of the NDLEA to oversees the disposal of forfeited assets, contrary to what is provided for in the NDLEA Act. These contradictory provisions may engender unhealthy rivalry between the secretary to the NDLEA and the chairman of the NDLEA and, this may undermine the disposal of forfeited. The general rule of law is that when there is a conflict between a principal legislation and a subsidiary legislation, the provision of the principal legislation will prevail over that of the subsidiary legislation (Onubogu v. Anazonwu, 2023). Based on this, it is submitted that the provisions of the NDLEA Act on the disposal of forfeited assets will prevail over that of the Regulations. The next part of this article examines the relevant provisions of the Administration of Criminal Justice Act of 2015 on the management of seized and forfeited assets.

The Administration of Criminal Justice Act of 2015 (ACJA) was enacted in 2015 and it is the main law that regulates criminal procedure at the federal level in Nigeria [Section 2(1) of the ACJA]. With respect to the management of seized assets, the ACJA provides that any perishable asset that is seized in the execution of a search warrant may be disposed of in such a manner as the court may direct (Section 154 of the ACJA; Waziri-Azi, 2016). This provision relates to the management of seized assets at the pre-trial stage of criminal proceedings. However, for a perishable seized asset to be sold pursuant to this provision, three conditions must be met. Firstly, the asset must have been seized pursuant to a search warrant (Section 154 of the ACJA). Secondly, the law enforcement agency that seized the asset must apply to a court, which could be a magistrate or High Court, for an order to sell the assets (Section 154 of the ACJA). This is an improvement on the provision of the ICPC Act which empowers the ICPC to sell perishable seized assets without requiring the order of the court [Section 38 (7) of the ICPC Act]. Thirdly, the court must order the sale of the seized assets (Section 154 of the ACJA). One weakness in this provision is that it applies only to perishable assets that are seized in the execution of a search warrant. Any perishable asset that was not seized pursuant to a search warrant cannot be sold pursuant to this provision (Sirajo, 2021).

The ACJA further provides that assets that are seized by law enforcement agencies in course of an arrest or investigation must be produced before a court within 48 hours of the seizure of the assets [Section 337(1) of the ACJA]. Upon the production of the assets before the court, the court must make an order that the asset should be disposed of or delivered to any person who is entitled to its possession [Section 337(1) of the ACJA]. It is submitted that this provision applies to all seized assets, including those they were seized without a search warrant. The ACJA also provides that where any asset that is suspected to be linked with criminality is produced before a court in course of a trial or an inquiry, the court may make any order, as it thinks appropriate, for the custody of the asset pending the conclusion of the trial or proceeding [Section 330(a) of the ACJA]. Unlike sections 154 and 337 of the ACJA that deals with the management of seized during the pre-trial phase, this provision deals with management of seized assets upon the commencement of trial [Section 330(a) of the ACJA].

It is submitted that once a trial has commenced and an asset linked with criminality is produced before the court, it is only the court that can determine where such assets should be kept pending the conclusion of trial. If such an asset is perishable, the court may order that it should be sold [Section 330(b) of the ACJA]. However, before the court gives such an order, it must first record it as evidence. Furthermore, the ACJA provides that the proceeds from the sale of the asset must be dealt with as the courts direct [Section 330(b) of the ACJA]. However, like the ICPC and the EFCC Acts, the ACJA does not make a provision for seized non-perishable assets, such a landed property, to be put to a profitable use pending the conclusion of the proceeding.

Also, the ACJA does not contain any provision on the management of assets that are subject of interim forfeiture orders. This omission contributed to the unethical conduct of the respondent in Ijeoma v. Uhumwangho. In this case, the respondent, a lawyer and a police prosecutor took over the management of assets that were subject of interim forfeiture. Th assets include a hotel and other property. Proceeds from the management of the hotel and rents from the property were paid into the personal bank account of the respondent. For these unethical conducts and professional misconduct, the Legal Practitioner Disciplinary Committee suspended the respondent from law practice for five years.

The ACJA, however, contains some provisions on the management of assets that are subject of final forfeiture order. It provides that that where the court makes an order for the forfeiture in respect of an asset but does not make any order with regards to its destruction or delivery to any person, the court may direct that the asset be kept until someone is able to prove to the satisfaction of the court and that he owns it [Section 332(1) of the ACJA]. In the alternative, the court may direct that the asset should be sold and the proceeds be held until someone proves to the satisfaction of the court that he owns it [Section 332(1) of the ACJA]. It is submitted that the latter provision will apply to perishable assets. If no person establishes a right in the asset within six months of its forfeiture, the proceeds from the sale of the asset are to be paid into the Consolidated Revenue Funds of the Federation or the state or any other appropriate account, depending on circumstances of each case. One main weakness in this provision is that the ACJA does not make a provision for the publication of order forfeiting the asset with a view to bringing it to the notice of any person that may have an interest in the asset. Without such a provision, the person who has interest in the asset may be unaware of the forfeiture order.

From the analyses of the provisions of these three laws, a few things can be deduced. First, none of the laws has detail provisions on the management of seized assets. While the ICPC Act provides for the sale of perishable seized assets, like the other EFCC Act and the ACJA, it does not provide for management of non-perishable seized assets. Likewise, with the exception of the ICPC Act, none of the laws has guidelines on pre-seizure planning that law enforcement agencies must carry out in determining whether or not to seize tainted assets. Second, the three laws have different and, in some cases, contradictory provisions on the management forfeited assets. For example, the EFCC Act empowers the EFCC’s secretary to dispose of forfeited assets, but in the ACJA, the decision to sell forfeited assets is made by courts. Third, none of the laws make provision for the management of assets that are subject -of interim forfeiture orders.

Fourth, none of the laws established an effective institutional framework for the management of seized and forfeited assets (Olujobi, 2021). In the EFCC Act, the secretary of the EFCC is empowered to sell forfeited assets and pay the proceeds into the Consolidated Revenue Fund of the Federation. In the ACJA, the decision to sell forfeited assets is made by courts. While the ICPC Act empowers its official to sell seized assets, it does not provide any institutional framework for the management and disposal of forfeited assets. Fifth, no adequate provision is made for accountability and transparency in the management of seized and assets in any of these laws (Sirajo, 2021). With the exception of the EFCC Act, none of the laws stipulates the account into which proceeds from the sale of forfeited assets is to be paid into. Also, none of the laws make provision for the auditing of seized and forfeited assets as well as proceeds from the sale of forfeited assets.

In a bid to remedy these flaws, an Executive Order titled “Presidential Executive Order on the Preservation of Suspicious Assets Connected with Corruption and Other Relevant Offences, 2018” was promulgated. The Executive Order inter alia empowers the Attorney-General of the Federation and the Minister of Justice to preserve the assets of any person that is being investigated for corruption and other related offences [Section 1 (c) (iii) of the Executive Order]. However, the Attorney-General is required to do this through lawful means. For example, by applying for and obtaining appropriate orders from the court [Section 1 (c) (iii) of the Executive Order]. The Executive order, however, did not cure the defects in the legal and institutional framework on management of seized and forfeited assets. Beyond empowering the Attorney-General to preserve seized and forfeited assets, it does not state measures that the Attorney-General of the Federation and the Minister of Justice should take to preserve these assets. Similarly, instead of establishing a unit or an institution to manage seized and forfeited assets, it empowers the Attorney-General of the Federation and the Minister of Justice to do so.

Also, to address the defects in the legal and institutional framework for the management seized and forfeited assets, the Asset Tracing, Recovery and Management Regulations, 2019 was promulgated (Sirajo, 2021). The Regulations empowered the Attorney-General to set-up “a structure” to manage all assets that are subject to final forfeiture orders (UNODC, 2021). They also make provisions for interim sale of seized assets and those subject to interim forfeiture orders. However, the Regulations were nullified by a Federal High Court, Abuja in the Incorporated Trustees of HEDA Resources Center v. the Attorney General of the Federation on the ground that they conflicted with existing laws. The next part of this article explores the relevant provisions of POCA, highlighting how they addressed the flaws in the legal and institutional framework for the management of seized and forfeited assets.

POCA was enacted in 2022, and is an important piece of legislation, particularly in the fight against economic crimes. It regulates and complements the provisions of other laws on conviction and non-conviction-based forfeitures (Sections 1 and 77 of POCA). It provides for non-conviction-based forfeiture of proceeds and instruments of crimes as well as abandoned property that are suspected to be proceeds of crime. In relation to conviction-based forfeiture, POCA provides for extended confiscation of proceeds of crime (Section 33 POCA). POCA also provides comprehensive legal and institutional framework for the management of proceeds of crime [section 1(a) of POCA]. Importantly, the provisions of POCA on the management of assets that are subject of forfeiture orders take precedence over the provisions of any other law (Section 77 of POCA; Ibikunle, 2023).

This implies that the provisions of the EFCC Act, the ICPC Act, NDLEA Act and the ACJA in relation to the management of seized assets as well as assets that are subject of preservation order co-exist with that of POCA (Ibikunle, 2023). It is submitted that this may cause confusion and uncertainty on the applicable law on the management of seized and forfeited assets, especially if the provisions of POCA conflicts with the provisions of other laws. To promote certainty on the applicable law on the management of seized assets and those that are subject of preservation orders, the article recommends that the provisions of POCA should take preference over the provisions of other laws.

Generally, there are two institutional frameworks for managing seized and forfeited assets. These are centralised and decentralised institutional frameworks. On the one hand, a centralised institutional framework is the one in which a public agency established by a law is charged with the exclusive duty of managing seized and forfeited assets (Vettori, 2018). On the other hand, a decentralised organisational structure is the one in which no specific public agency is charged with the duty of managing seized and forfeited assets (Vettori, 2018). Instead, several agencies are charged with the duties of managing seized and forfeited assets (Vettori et al, 2014). POCA establishes a decentralised institutional framework for the management of seized and forfeited assets. It does not establish a central or an independent body to manage seized and forfeited assets. Rather, it mandates all the relevant organisations to establish Proceeds of Crime (Management) Directorate, (the Directorate) [Section 3 (b) of POCA]. These relevant organisations comprise law enforcement, regulatory and revenue collection agencies [Section 3 (b) of POCA]. By providing that each of the relevant organisations must establish the Directorate, POCA has strengthened the institutional framework for the management of seized and forfeited assets. It is submitted that this will enable the relevant organisations to use persons with requisite expertise to oversee the management of seized and forfeited assets (Vettori et al, 2014).

The Directorate is charged with responsibility of setting standards on and ensuring accountability in the administration and management of forfeited assets [Sections 3(b) (ii), 81 (2) of POCA]. In addition, unlike what was obtainable before its enactment, POCA empowers the Directorate to appoint private asset managers to manage forfeited assets [Section 3 (b) (vi) of POCA]. This implies that the Directorate may not carry out the duty of managing proceeds of crimes directly; it may appoint private asset managers to so on its behalf. It is submitted that the involvement of private sector players with requisite expertise in the management of assets would enhance effective management of seized and forfeited assets in Nigeria. To guide against the loss of the assets, POCA mandates the Directorate to ensure that the asset managers are insured and properly bonded [Section 3(b) (vi) of POCA]. To promote transparency and accountability in the management of proceed of crime, the Directorate are mandated to establish and maintain a central database of all assets that were seized and recovered by the relevant organisation [Section 3(d) of POCA]. Also, the Directorate must maintain an accurate inventory of all assets, including their location, condition and description of the status of proceedings relating to them [Section 3(h) of POCA].

One flaw in the provisions of POCA on the institutional framework for the management of forfeited assets is that no agency is empowered to supervise and coordinate the activities of all the Directorates. Most of the organisations that are mandated to establish the Directorate are under the supervision of the different ministries. For example, the EFCC and the ICPC are under the supervision of the Ministry of Justice while the Nigerian Police Force is under the supervision of Ministry of Police Affairs. Similarly, the Nigerian Customs Services, and the Nigerian Immigration Services are under supervision of the Ministry of Interior, while the Federal Inland Revenue Service is under the supervision of the Ministry of Finance. Without effective coordination of the activities of these Directorates, there may be no uniformity and synergy in their approach to the management of seized and forfeited assets, and this may undermine transparency and accountability in the management of these assets (Vettori, 2014).

The case of Ijeoma v. Uhumwangho illustrates the challenge that could undermine the effective management of seized and forfeited assets by different agencies without any coordination or supervision. In this case, as stated before, proceeds from the management of the hotel and rents from other property that were seized from a suspect were paid into the personal bank account of the respondent, a lawyer and police prosecutor. The main defence of the respondent was that he was instructed by the Police Authority to do so, and he claimed that he is answerable only to the police authority in this regard. He submitted that no else can question him for his unethical conduct, not even the Legal Practitioner Disciplinary Committee, the body empowered to hear and determine allegations of professional misconducts levelled against legal practitioners in Nigeria. To avoid a repeat of this situation, this article recommends that the Ministry of Justice should be charged with the responsibility of coordinating and supervising the activities of the Directorates in all the organisations. The Ministry of Justice should be empowered to harmonise the policies and standards of all the Directorates on the management of seized and forfeited assets (Section 81 of POCA).

POCA mandates relevant agencies to notify their respective Directorate within fourteen days or soon after of the seizure of any asset [Section 5(1) (a) of POCA]. It is submitted that this will enable the Directorate to keep proper record of the seized assets. Where a relevant organisation seizes cash that is suspected to be proceeds or an instrument of crime, it must apply to the court for an order to detain the cash and thereafter pay it into its bank account pending the conclusion of investigation or proceedings that may be brought in relation to the cash (Section 28 of POCA). However, besides this, POCA does not state any measure that relevant agencies must take in the management of seized assets, particularly the perishable ones. Also, it does not contain any provision on pre-seizure planning. In light of this, this article submits that the provisions of the ICPC Act and ACJA on the management of seized assets will continue to apply (Section 77 of POCA).

POCA empowers any of the relevant organisations to apply to a court for a preservation order in respect of any asset that is suspected to have been derived from unlawful activities or that is an instrumentality of unlawful activity (Section 9 of POCA). If the court grants the preservation order, the order could subsist for a maximum of 240 days [Section 12 (2) (b) of POCA]. This is relatively a long period of time and underscores the need for these assets to be properly managed (Birkett, 2020). Otherwise, they may deteriorate or depreciate in value (Bostwick et al, 2023). If this happens, any forfeiture order that is made in respect of these assets may be worthless (Bostwick et al, 2023). However, if the court does not make order the forfeiture of the assets, the relevant organisation may be liable in damages for negligence in the handling of the assets while they were in its custody (Birkett, 2020). Hence, it is important for these assets, particularly the perishable ones, to be properly managed. In recognition of this, POCA, unlike the ICPC Act, the EFCC Act and the ACJA, states how these assets should be managed.

Upon the grant of a preservation order, the court, on its own, may direct the relevant organisation to appoint an asset manager to take control of and administer the assets that are subject of the order [Section 14 (1) (a) of POCA]. In addition, the court may direct the asset manager to sell the assets if they are perishable, or liable to deteriorate [Section 14 (1) (a) (v) of POCA]. Similarly, the court may direct the asset manager to sell a seized asset if it would be not economically viable to maintain it [Section 14 (1) (a) (v) of POCA]. Additionally, a relevant organisation may to apply to a court for an ex parte order to sell an asset, if it has any reason to believe that the asset may depreciate in value, deteriorate, or may be damaged [Section 13 (1) of POCA]. However, it must be noted that a relevant organisation cannot apply to the court for the sale an asset on the ground that it is not economically viable to maintain it [Section 13 (1) of POCA]. It is submitted this may undermine the effective management of such assets. To avoid this, this article recommends that the provisions of POCA should be amended to empower a relevant organisation to apply for the sale of assets that are subject of preservation order if it would be not economically viable to maintain such an asset.

It is noteworthy that a relevant organisation cannot dispose of a perishable asset that is subject of a preservation order without the authorisation of a court. This is an important safeguard to prevent the abuse of interim sale of assets that are subject to preservation order, and it is an improvement on the provisions of the ICPC Act, which provides for the sale of perishable seized assets without a court’s order [Section 38 (7) of POCA]. With a view to ensuring that the assets are not sold at give-away prices, POCA provides that the assets must be sold at the prevailing market rate [Section 13 (1) of POCA]. After the sale of the assets, the proceeds must be invested in the Central Bank of Nigeria treasury bills, pending the conclusion of the proceedings for its final forfeiture [Section 13 (2) of POCA]. It is submitted that this will prevent the proceeds from being misused or spent on dubious investments. However, if the preservation order is nullified by the court, the relevant organisation is obligated to pay the proceeds of the sale with the accruable interests to the owner of the property, provided its appeal was unsuccessful [Section 13 (3) of POCA].

If the court orders the forfeiture of the assets, the Directorate must transfer them to its custody within thirty days that the court makes the order [Section 5 (1) (c) of POCA]. However, if the court, as parts of its judgment, gives an order on how the assets should be disposed, the Directorate must comply with it. For example, the court may order that the asset should be returned to the victim. If the confiscated asset is money and the court does not give an order on how it should be disposed of, the Directorate must deposit it into the confiscated and Forfeited Properties Account [Section 22(1)(a) of POCA]. If the confiscated asset is not money, the Directorate has discretion to dispose it off, either by sale or any other means. However, POCA does not state the meaning of the phrase “any other means”. This article submits the meaning of the phrase “any other means” include social reuse and destruction of the confiscated assets (Vettori, 2018).

One flaw in this provision is that POCA does not provide any guidelines on the factors that relevant organisations should consider in deciding whether to dispose-of forfeited assets through sale or “any other means”. Without such guidelines, the discretion that relevant organisations have to unilaterally decide whether or not to dispose of forfeited assets through social reuse may be abused. To avoid this, this article recommends that the Attorney-General of the Federation should be empowered to make guidelines to regulate the disposal of forfeited assets through social reuse. The guidelines should state the type of assets that could be disposed of through direct social reuse, and the organisation to whom the assets could be donated to (Bostwick et al, 2023). Furthermore, to promote accountability, the deposal of high value assets through social reuse should be subject to the approval of the President or the Minister of Justice.

If a relevant organisation chooses to dispose of the assets by sale, upon the sale of these assets, the expenses that relevant organisation incurred in maintaining them as well as the cost of advertising the sale of the assets must be deducted from the proceeds of the sale of the assets and the balance must be paid into the Confiscated and Forfeited Properties Account [Sections 22 (1) and 68 (1) of POCA]. This is in line with international best practices as the Financial Action Task Force (FATF) recommends that each country should establish an asset forfeiture fund in which all or a part of confiscated property should be deposited (FATF, 2012). The Confiscated and Forfeited Properties Account is a joint account that the heads of all the relevant organisations are obligated to maintain at the Central Bank of Nigeria [Section 68 (2) of POCA]. To promote accountability in the management of this account, POCA mandates each of the head of the relevant organisations to provide reports to the Minister of Finance on this account [Section 68 (2) of POCA]. Also, POCA provides that the Account must be audited in line with the guidelines provided by the Auditor-General of the Federation (Section 71 of POCA).

However, the audit is limited to the proceeds of forfeited assets that are paid into this Account. The audit does not extend to the entire assets management system, particularly the sale of the assets (Bostwick et al, 2023). This article recommends that the audit should be extended to all the phases of assets management with a view to uncovering any unethical or corrupt practices that might have been perpetrated therein. Importantly, the scope of the audit should extend to verifying whether the assets were sold at the prevailing market values.

This article established that Nigeria now has a comprehensive legal framework on the management of forfeited assets. It also showed that POCA establishes a decentralised institutional framework for the management of seized and forfeited assets. Nonetheless, the provisions of POCA on the management of seized and forfeited assets have some flaws. One such flaw is that POCA does not address the management of seized assets. Also, POCA mandates all the relevant organisations to establish the Proceeds of Crime (Management) Directorate, but no agency is empowered to supervise and coordinate the activities of the Directorates. Furthermore, POCA does not provide guidelines to regulate the disposal of forfeited assets through social reuse. Similarly, POCA does not provide for the audit of the entire assets management system. It only provides for the audit of the account into which the proceeds from the sale of forfeited assets is paid into.

To ensure effective management of forfeited assets, this article makes the following recommendations. Firstly, POCA should be amended to include measures that relevant organisations should take to ensure effective management of seized assets. Specifically, POCA should mandate relevant organisations to carry out pre-seizure planning before seizing any asset. Furthermore, it should provide for interim sale of seized assets that are perishable as well as those they may be difficult or impractical to maintain. With respect to seized non-perishable assets, where appropriate, POCA should allow these assets to be put to productive use. Secondly, the Minister of Justice should be charged with the responsibility of coordinating and supervising the activities of the Directorates in all the organisations with a view to harmonising their policies and standards on the management of seized and forfeited assets. For examples, the Minster off Justice should make uniform pre-seizure guidelines for all relevant agencies. Also, the Minister of Justice should promulgate guidelines to regulate the disposal of confiscated assets through social reuse. Fourth, the entire management system should be audited.