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“HUSHPUPPISM”: An Exception To Presumption Of  Innocence By Osigwe Ahmed Momoh

In the wake of the gestapo-like arrest of Nigerian Instagram sensation Raymond Igbalode popularly known as Hushpuppi in the United Arab Emirates, several well-meaning observers had asked  as to whether the Nigerian investigative agencies were complacent;  in that the individual in question was well reputed to flaunt his  seemingly illicitly acquired wealth on the social media and in social gatherings in Nigeria. Certainly, Nigerians know that there are several of these ‘Hushpuppies’ who seem to wake up into overnight opulence.

In light of the fact that every Nigerian is thoroughly covered and protected with the Presumption of Innocence as constitutionally enshrined, one therefore wonders if the government, based solely on mere suspicion and bereft of any supporting evidence whatsoever, can institute a legal proceeding against anyone with seemingly questionable wealth?

In other words, can the government premised on the fact that an individual is immersed in obscene opulence and inexplicably luxury, institute a criminal proceeding? to use the words of Sen. Dino Melaye; should the government investigate the source of people’s wealth and not the source of their poverty? Without doubt, the last question is not deserving of an answer, but I’ll painstakingly attempt the answer the earlier one raised.

According to the 9th Edition of the Black’s Law Dictionary, ‘’presumption of innocence is the fundamental criminal law principle that a person may not be convicted of a crime unless the government proves guilt beyond a reasonable doubt, without any burden placed on the accused to prove innocence.”

This sacred legal principle has been firmly planted in Sec 36 (5) of the 1999 Constitution (as amended), “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty” this seemingly simplistic provision is perhaps the bedrock of criminal law and guides not just criminal trials  but quasi criminal trials in common law jurisdictions.

In C.O.P v. AMUTA (2017) LPELR-41386(SC) the highly cerebral Justice Ogunbiyi, expertly espoused this constitutional provision to wit; “The constitutional provision on the presumption of innocence of an accused person is sacrosanct and settled. The burden is always on the prosecution to prove the guilt of the accused and not his business to prove his innocence. He can decide to keep mute from beginning of the trial right through to the end. It is for the prosecution to make out a prima facie case against the accused through credible evidence which must be laid bare before the Court. It is the proof of hard facts that would lead to the conviction of the accused. Without any case made out against the accused, he cannot be called upon to enter his defense because in doing otherwise would undermine the constitutional presumption of innocence’’.

It is settled that everyone is presumed innocent, and you cannot arrest and try anyone on the basis of mere suspicion neither can you force anyone to defend themselves or prove their innocence, afterall he that asserts must prove!

In SHUAIBU v. STATE (2018) LPELR-45023(CA) the Court of Appeal re-echoed the time-tested principles when it held that ‘suspicion no matter how strong cannot replace legal proof.’

However, IT MUST BE NOTED that the doctrine and principle of presumption of innocence does not extend to property right; it is only a person that is presumed innocent and not his chattel, real estate, money etc. As complex and obfuscating as this may seem, it is actually very simply and easy discernable. In the next few paragraphs, I shall further attempt to clarify this legal position.

Since we have firmly established that everyone is deemed innocent, and mere suspicion no matter how pungent they may seem, can never replace evidence; one then wonders how the law enforcement agencies can muscle up the courage to prosecute individuals that provocatively display glaringly illicit opulence yet no shred of evidence can be used to prosecute such fellow.

If an individual who has no job or viable business suddenly begins to display stupendous luxury and flaunts his wealth on social media, does that individual still enjoy the presumption of innocence?  Everyone with a functional brain knows that money does not fall from the sky, should the individual then be prosecuted for the mere fact that he was once broke but now he is inexplicably rich?

The answer to the preceding paragraph is yes and no. As at the last check, it is still not a crime to become rich overnight, neither does an individual have an obligation to publicly declare his assets save for specific instances.

We shall continue this discussion by reproducing Section 18(3) EFCC ACT which is impari materia with Section 15 of the Advance Fee Fraud (and other Fraud Related Offences) Act 2006.

‘ In any trial for an offence under this Act, the fact that an accused person is in possession of pecuniary resources or property for which he cannot satisfactorily account and which is disproportionate to his know sources of income, or that he had at or about the time of the alleged offence obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, MAY BE PROVED and may be taken into consideration by the Court as corroborating the testimony of any witness in the trial’. (emphasis mine)

Simply put, this section tends to suggest that the mere fact that an individual has inexplicable funds can be proof that he has illegitimate or corrupt money. This provision seems to conflict directly with the constitution, in that an individual is invariably asked to explain his wealth or better put defend his innocence.

This Section appears to place the burden of proof on the accused, and the mere facts that he has pecuniary resources that he cannot satisfactorily account for may be proof that he has committed a crime. It is difficult to accept that this provision does not intend to erode the sacred provision of the constitution, and for clarity and certainty sake, ‘any law that is in conflict with the constitution is basically null and void, to the extent of its inconsistency see Section 1(3) of the 1999 Const (as Amended). 

This must have been the reasoning of the appellate court in FEDERAL REPUBLIC OF NIGERIA V. DR. OLUBUKOLA ABUBAKAR SARAKI (2017) LPELR-43392(CA), where the court held that ‘The Burden Of Proving ‘All’ Elements of the offence still rests on the prosecution in conformity with the accusatorial criminal justice system the country operates. (Emphasis mine), the standard of prove is that beyond reasonable doubt, the prosecution must prove ALL elements of the offence and the Defendant need not say a single word to prove his innocence’.

The great advantage of this section to the state would be in terms of corroborating already existing evidence, therefore if and when there is already evidence or a witness against a suspect, the fact that the suspect has questionable resources would corroborate the already existing evidence.

Since every Nigerian is deemed innocent and cannot be forced to defend his innocence regardless of the extent of suspicion, and since, criminals and conmen are especially skilled in burying links and traces of their crimes, one now wonders how prosecutors can based solely on common sense, round up persons who cannot satisfactorily explain their resources. The solution to this legal issue and the exception to the doctrine of presumption of innocence, has been thoroughly codified in Section 17 of the Advance Fee Fraud and (Other Fraud Related Offences) Act 2006.

With this provision, the law enforcement agents can base on the mere facts that anyone has either money or money’s worth way above his ostensible means, apply to high court seeking a temporal forfeiture order. Now if the court grants this order the defendant now has the duty to go to the court to show course, in other words, prove that indeed that property was not gotten from illicit or criminal activities, failure of which the properties would be seized and confiscated. Permit me again to reproduce the section for better understating;

17.(1) Where any property has come into the possession of any officer of the Commission as unclaimed property or any unclaimed property is found by any officer of the Commission to be in the possession of any other person, body corporate or financial institution or any property in the possession of any person, body corporate or financial institution is reasonably suspected to be proceeds of some unlawful activity under this Act, the Money Laundering Act of 2004, the Economic and Financial Crimes Commission Act of 2004 or any other law enforceable under the Economic and Financial Crime Commission Act of 2004, the High Court shall upon application made by the Commission, its officers, or any other person authorized by it and upon being reasonably satisfied that such property is an unclaimed property or proceeds of unlawful activity under the Acts stated in this subsection make an order that the property or the proceeds from the sale of such property be forfeited to the Federal Government of Nigeria.

A novel and ingenious feature of Section 17 of AFFA 2006 is encapsulated in Section 17 (6)An order of forfeiture under this section shall not be based on a conviction for an offence under this Act or any other law’. The brilliance of this section, is that the emphasis is limited to the property and not the person as such, an action instituted under this section is ‘sui generis’ and the necessity to prove beyond reasonable doubt has been discharged and shifted into the preponderance of probability(evidence). More so, the doctrine of presumption of innocence is obviated, since no one can be convicted or sentenced by virtue of this section. All that matters is that properties and or money, will be forfeited to the government when the individual fails to show satisfactory cause.

Since criminal litigation is rigid and stern and obviously very expensive to prosecute, any sustained campaign against financial crimes must be pursued vide the, Non-Conviction Based Asset Forfeiture as provided for in Section 17 of the AFFA. It would save the state more time and money, and would ultimately rapidly disincentivize fraudsters. Anyone plying this trade would quickly realize that he is essentially generating money for the government and criminals are not known to be patriotic.

In OGUNGBEJE V. EFCC (2018) LPELR-45317(CA) Where the major issue for determination was whether a trial Court had jurisdiction to proceed to make an order for Final Forfeiture of the property pursuant to the Respondent’s Application in the absence of an investigation, prosecution, trial and conviction. The Court emphasized that,It is very clear from the wordings of Section 17 of the Advance Fee Fraud and other related offences Act, 2006 as reproduced above that the law recognizes the power of the trial Court to make an Order of Forfeiture without conviction for an offence; that is the very essence of the provisions of Section 17 of the Act which was emphasized in Subsection (6), by clearly and emphatically providing that forfeiture under the provisions shall not be based on conviction’

In conclusion, we have seen that, although the presumption of innocence basically prevents the law enforcement agencies from rounding up individuals with suspicious source of income and proceed to institute criminal cases against them, by virtue of Section 17 of the AFFA, the presumption of innocence does not extend to their properties, therefore properties and bank account can be frozen or seized, and the owners can be forced to defend the source of the money, or otherwise forfeit same to the government. As mentioned earlier, this is an easier, faster and safer approach to curb and battle financial crimes.  In the words of Eneke the bird; ‘since men have learned to shoot without missing, the bird has learnt to fly without perching’.

Osigwe Ahmed Momoh, is an Abuja based lawyer, writer and public commentator. He has a flair for research and legal dissection.

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