Forfeiture and Its Many Variants

Basic Civil Forfeiture Lacking Criminal Connotations Across Different Jurisdictions 

The term “Forfeiture”, is one which we have heard being mentioned copiously lately in Nigeria, in the political arena during this campaign season running up to the 2023 general elections. While the word has general meanings, it is also a multi-faceted term which could convey different legal definitions in different jurisdictions. For instance, in many jurisdictions around the world, you have ordinary cases of purely civil forfeiture which have no criminal element; for example, where an individual buys a car on hire purchase, fails to make the agreed periodic payments thereby breaching the hire purchase agreement, and the Car Company repossesses the vehicle (this happens in Nigeria too). In this example, the Purchaser forfeits the vehicle, but it is not a matter that has criminal connotations. At best, it ruins the credit rating of the Purchaser. In the UK and many first world jurisdictions, an individual runs the risk of losing (forfeiting) his/her property, if he/she reneges on mortgage payments on a property purchased by means of a mortgage loan, as per the Mortgage Agreement. We also have forfeiture in Landlord/Tenant matters, and here in Nigeria, also in Customary Tenancy Matters. However, this purely civil context, is not the context in which we have heard “Forfeiture” being used in recent times, especially in relation to American law.

Some Types of Forfeiture Under American Law

Criminal Forfeiture 

The aforementioned types of forfeiture in the case of breaching hire purchase, mortgage agreements etc, differs from Criminal, Civil and Administrative Forfeiture under American law. These three American types of forfeiture are definitely linked to criminal activities, even if only one of them actually bears the term “Criminal Forfeiture”. Criminal Forfeiture obtains against a Defendant who is convicted of a criminal offence, and forfeiture in this regard, is part of the Defendant’s sentence, and is usually limited to property or money that is involved in the Indictment (Charge).

Civil Forfeiture 

In the case of Civil forfeiture, the difference is that no criminal conviction is required, and unlike Criminal forfeiture in which the proceeding is against a person, Civil forfeiture is proceedings against property which is derived from criminal activities or proceeds of a crime. However, for some Senior Lawyers to then attempt to mislead the unsuspecting, unknowing public by saying Civil Forfeiture has nothing to do with crime/criminal activities possibly because it bears the word “Civil”, is more than stretching the definition! There is an undeniable intersection, between civil forfeiture and criminal activities. I found Festus Keyamo, SAN’s arrogance particularly tragicomic, when he recently told Seun Okinbaloye on Politics Today to ‘take notes’ as he screeched out mostly inaccurate submissions, while he was ‘delivering his lecture on forfeiture! Civil Forfeiture has been defined as “A process by which the government institutes a civil proceeding parallel to a criminal prosecution, and attempts to seize property of the accused that is related to the crime” – Ira Mickenberg, Prosecutors Granted Leeway in Forfeitures, NAT’L L.J., July 29, 1996 at C6. This definition is self-explanatory enough; though it is called a civil proceeding, the words criminal and crime are used in the same sentence relating to the civil proceeding. 

In the Michigan State Civil Forfeiture case of Bennis v Michigan, 116 S. Ct 994 (1996), in which Mr Bennis, who co-owned his vehicle with his wife Mrs Tina Bennis, was arrested and subsequently, convicted for gross indecency for engaging in sexual relations with a prostitute in the said vehicle on a Detroit City Street, the court ordered the car which was used to commit the crime, forfeited, because it was a public nuisance. Mrs Bennis, the co-owner of the vehicle, appealed the decision, claiming that she was unaware of her husband’s misuse of the vehicle. The case went up to the Supreme Court of Michigan, and the majority decision held inter alia that “knowledge of the use of property as a nuisance is not required”. According to MICH. COMP. LAWS ANN. §600.3815(2)(West 1987) which Mr Bennis offended, “Proof of knowledge of the existence of the nuisance on the part of the defendants or any of them, is not required”. The point is that even though civil forfeiture is certainly connected to criminal activities, it is possible that a party who may not be involved in such criminal activity or has no knowledge of it could be made to forfeit their possessions, if their possessions are somehow involved in criminal activities, like the vehicle that was co-owned by Mrs Bennis. 

It seems that in the case of civil forfeiture, a distinction is made between the individual and the property itself. Naturally, the normal defence to forestall forfeiture in such matters, is to plead ignorance of the criminal activities that the item sought to be forfeited took part in, or is a resulting proceed of crime. In the Bennis case, the laws of Michigan State did not recognise ignorance as a viable defence against the nuisance.  

Administrative forfeiture, also proceedings against property, has to do with Government seizure of property based on probable cause.

Nigerian Law & Examples of Forfeiture   

Under Nigerian law, Forfeiture is also a somewhat comprehensive and flexible term, since it can be used in both civil or criminal contexts. In Abacha v F.R.N. 2014 6 N.W.L.R. Part 1402 Page 43 per Kekere-Ekun JSC and Ariwoola JSC (now CJN), the Supreme Court quoted the definition of Forfeiture in Black’s Law Dictionary 8th & 9th Edition thus: “1. The divestiture of property without compensation. 2. The loss of a right, privilege or property because of a crime, breach of obligation or neglect of duty”. The Apex Court further held that: “Therefore, forfeiture connotes punishment for a crime committed, and it’s effect is instantaneous”.

We have straightforward criminal forfeiture, for example, where some Politicians and Bankers were convicted of corruption and money laundering charges, and they forfeited their illegally acquired properties and monies or some of it, as part of their punishment.  

In a civil context, a situation where Government acquires land/property belonging to individuals possibly for a public purpose, doesn’t pay compensation for the acquisition, it fits into the first definition of forfeiture according to Black’s Law Dictionary cited in Abacha v F.R.N. (Supra) – divesture of their property without compensation. In this circumstance, there is no wrongdoing on the part of the landowners, and there is no criminal connotation to forfeiture here. Also see the case of Nwaigwe v F.R.N. 2009 16 N.W.L.R. Part 1166 Page 169 at 200 per Mukhtar JCA (as she then was).

The case of building collapse in Nigeria, is a good example of the second definition of Forfeiture in Abacha v F.R.N. (Supra). Section 74 of the Lagos State Urban and Regional Planning and Development Law 2019 provides that if a property or structure within the State collapses  due to negligence on the part of the owner or the developer,  such property shall be forfeited to the State Government after due investigation and or publication in the State Official Gazette. Like Civil forfeiture in USA, the provision does not require a conviction. Because of the negligence, various breaches of duties of care, and of course, the criminal offences involved like Involuntary Manslaughter contrary to Section 222 of the Criminal Law of Lagos State if there are deaths resulting from the Building collapse, the Owner of the property automatically forfeits it.

In AG, Bendel State v Agbofodoh 1999 2 N.W.L.R. Part 592 Page 476 at 496-497 per Uwais CJN, the Supreme Court referred to various dictionary meanings of the word forfeit – all pointing to something being taken away as punishment for doing something wrong, holding inter alia thus: “The Webster’s New Twentieth Century Dictionary, 2nd Edition, defines the word “forfeit” as the act or process of paying a penalty for a crime, fault or mistake etc and the word “forfeiture” is defined therein to mean that which is forfeited; a penalty; a forfeit; a fine or mulct….. damage, confiscation, sequestration and amercement”. 

Similarly, as in the case of building collapse, Section 15 of the Kidnapping (Prohibition) Law of Lagos State 2019 provides that any movable or immovable property used for, or in connection with the the commission of the offence of kidnapping may be forfeited to the State; the only difference with building collapse being that, while the forfeiture to the State Government in building collapse is mandatory after due investigation, in the case of kidnapping, it is a possibility.

Conclusion 

While it is true that in law, the term “Forfeiture” can be used in a civil context only, this is not the case in the recent national discourse. It is therefore, discouraging when Politicians/Lawyers twist definitions and situations to further their own causes, by attempting to mislead the unknowing public. Many political spokespersons, are not excluded from this unwholesome practice. Aside from it being off-putting, it may be a peep into what lies ahead in the future of Nigeria under these people, especially when there are thorny issues which Nigerians are unhappy about, or when they renege on their campaign promises or in situations which have been handled badly by Government. They will simply orchestrate all kinds of cover-ups as excuses, instead of doing the needful. Just like this present administration has done, in many instances.