Proceeds of Crime (Recovery and Management) Act, 2022 Download

Extraordinary

Federal Republic of Nigeria Official Gazette

No. 92 Lagos - 17th May, 2022 Vol. 109

Government Notice No. 69

The following is published as supplement to this Gazette :

Act No. Short Title Page 16 Proceeds of Crime (Recovery and Management) Act, 2022 A575-618

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Proceeds of Crime (Recovery and Management) Act, 2022

A 575

PROCEEDS OF CRIME (RECOVERY AND MANAGEMENT) AСТ, 2022

ARRANGEMENT OF SECTIONS

Section :

PART I-OBJECTIVES AND APPLICATION OF THIS ACT

1. Objectives.
2. Application.

PART II-PROCEEDS OF CRIME MANAGEMENT DIRECTORATE

3. Establishment and functions of the Proceeds of Crime Management Directorate in the relevant organisation.
4. Powers of the relevant organisation.
5. Role of the Directorate in the process of management of forfeited properties.

PART III-RELATIONSHIP BETWEEN THE RELEVANT ORGANISATION AND OTHER ENTITIES

6. Co-operation between relevant organisation and other entities.

PART IV-NON-CONVICTION BASED RECOVERY OF THE PROCEEDS OF CRIME

7. Application of this Part.
8. Nature of proceedings under this Part.
9. Preservation order.
10. Notice of preservation order.
11. Duration of a Preservation order.
12. Renewal of a preservation order.
13. Disposal of property subject to preservation order.
14. Appointment of asset manager for property subject to a preservation order.
15. Orders in respect of immovable property subject to a preservation order.
16. Variation and rescission of order.
17. Application for forfeiture order.
18. Service of notice out of time.
19. Making of a forfeiture order.
20. Effect of appeals on preservation or other ancillary orders.
21. Effect of forfeiture order.

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Proceeds of Crime (Recovery and Management) Act, 2022

22. Fulfillment of forfeiture order.
23. Unlawful activities or conduct forming the basis of multiple orders.
24. Application of this Part to deceased estates.
25. Effect of death of joint owner of property under a preservation order.

PART V-RECOVERY OF CASH

26. Seizure and detention of cash.
27. Detention of seized cash.
28. Interest to be paid on seized cash.
29. Release of detained cash.
30. Application for forfeiture of seized or detained cash.
31. Appeals.
32. Other owners or claimants.

PART VI-CONFISCATION OF PROCEEDS OF CRIME

33. Objectives of this Part.
34. Application of this Part.
35. Application for restraint order.
36. Purposes of restraint order.
37. Property subject to a restraint order.
38. Affidavit in support of a restraint order.
39. Notice of restraint order.
40. Registration of Restraint Orders.
41. Setting aside a disposition contravening a restraint order.
42. Contravening restraint orders.
43. Seizure of property covered by a restraint order.
44. Cessation of restraint orders.
45. Making of confiscation orders.
46. Value of proceeds of criminal activities.
47. Amounts that may be realised.
48. Realisable Property.
49. Value of property.
50. Gifts made by a convicted person.
51. Procedure where a person absconds or dies.
52. Enforcement of confiscation orders.

PART VII-INVESTIGATION, SEARCH AND SEIZURE

53. Objectives of this Part.
54. Application of this Part.
55. Actions detrimental to an investigation.
56. Retention of seized property.
57. Obstructing the execution of a search and seizure warrant.

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PART VIII-ADMINISTRATION

58. Powers and duties of the relevant organisation in respect of property seized.
59. Preserving controlled property.
60. Rights attaching to shares.
61. Destroying or disposing of property.
62. Notice of proposed destruction or disposal of controlled property.
63. Proceeds from sale of property.
64. Discharge of confiscation orders by payment into the designated Account.
65. Return of income generated from controlled property.
66. Immunity against liability for loss.
67. International forfeiture provisions.

PART IX-CONFISCATED AND FORFEITED PROPERTIES ACCOUNT

68. Establishment of the Confiscated and Forfeited Properties Account.
69. Payments into the Confiscated and Forfeited Properties Account.
70. Payments out of the Confiscated and Forfeited Properties Account.
71. Audit of the Confiscated and Forfeited Properties Account.
72. Authorisation of expenditures for approved programmes of relevant organisation.

PART X-JURISDICTION

73. Jurisdiction.

PART XI-GENERAL PROVISIONS RELATING TO LEGAL PROCEEDINGS

74. Burden of proof.
75. Stay of proceedings.
76. Publication of notice.
77. Relationship with relevant laws.
78. Pre-action notice.
79. Restriction on execution against property of the relevant organisation.
80. Indemnity of officers of the relevant organisation.

PART XII-MISCELLANEOUS PROVISIONS

81. Regulations and guidelines.
82. Interpretation.
83. Citation.

SCHEDULE

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Proceeds of Crime (Recovery and Management) Act, 2022

PROCEEDS OF CRIME A 579

(RECOVERY AND MANAGEMENT) AСТ, 2022

ACT No. 16

AN ACT TO MAKE COMPREHENSIVE PROVISIONS FOR SEIZURE, CONFISCATION, FORFEITURE, AND MANAGEMENT OF PROPERTIES REASONABLY SUSPECTED TO HAVE BEEN DERIVED FROM UNLAWFUL ACTIVITIES; AND FOR RELATED MATTERS.

[12th Day of May, 2022] Commence- ment.

ENACTED by the National Assembly of the Federal Republic of Nigeria-

PART I-OBJECTIVES AND APPLICATION OF THIS ACT

1.(1) The objectives of this Act are to- Objectives. (a) provide for an effective legal and institutional framework for the recovery and management of the proceeds of crime, benefits derived therein, instrumentality of unlawful activities, and unclaimed properties reasonably suspected to be proceeds of crime ; (b) make provisions for the restraint, seizure, confiscation and forfeiture of property derived from unlawful activities and any instrumentalities used or intended to be used in the commission of such unlawful activities; (c) make provisions for non-conviction based procedure for the recovery of proceeds of crime ; (d) strengthen the criminal confiscation procedure by ensuring that the total benefit from a person's criminal activity is calculated and an equivalent amount, where recoverable, is confiscated on behalf of the Federal Government; (e) ensure that the relevant organisations establish the Proceeds of Crime (Management) Directorate to carry out the functions conferred on it under this Act; (f) strengthen collaboration among the relevant organisations in tracing and forfeiting properties reasonably suspected to be proceeds of unlawful activity through non-conviction based forfeiture proceedings ; and (g) make provisions for the handover, management and disposal of properties forfeited to the Federal Republic of Nigeria.

2. The provisions of this Act apply to- Application. (a) detection, identification, investigation, and recovery of realisable assets and the proceeds and instrumentalities of unlawful activity by relevant organisations; (b) orders and directives by the Court to support the detection, recovery and preservation of the proceeds and instrumentalities of unlawful activity and realisable properties by relevant organisations ;

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Establishment and functions of the Proceeds of Crime Management Directorate in the relevant organisation.

Proceeds of Crime (Recovery and Management) Act, 2022

(c) confiscation orders to recover a sum equivalent to the amount a convicted person has acquired from the offences charged and related offences, including accrued benefits ; (d) management of the recovered assets and property by the relevant organisation under this Act ; and (e) training and certification of asset recovery officers, asset recovery agents, auctioneers, bankers, consultants and judicial officers.

PART II-PROCEEDS OF CRIME MANAGEMENT DIRECTORATE

3. The relevant organisation shall— (a) enforce and administer the provisions of this Act ; (b) establish Proceeds of Crime (Management) Directorate which shall- (i) take over and assume responsibility for the proper and effective management of properties forfeited to the Federal Government of Nigeria, (ii) set standards to be applied in the handling of properties forfeited to the Federal Government of Nigeria, (iii) ensure accountability in the management of all properties forfeited to the Federal Government of Nigeria, (iv) ensure the effective administration of properties forfeited to the Federal Government of Nigeria, (v) recommend training on the management of the proceeds of crime and related matters, and (vi) appoint private asset managers and ensure that the assets managers are properly bonded and insured ; (c) establish and maintain— (i) assets management and disposal systems, and (ii) lists of approved auctioneers and valuers, and issue instructions for the realisation or security of assets whilst ensuring fair process ; (d) establish and maintain a central database of (i) all seized and recovered assets by the relevant organisation, and (ii) asset managers, auctioneers, insurers, and other necessary support services; (e) work with the Federal Ministry of Justice to negotiate the return and management of all assets seized from foreign countries on behalf of the Federal or State Governments, or any other victim or for the benefit of Nigerians; (f) maintain statistics as to amounts recovered and managed ;

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(g) collaborate with other government bodies outside Nigeria that are carrying on functions, wholly or in part similar to it ; (h) maintain an accurate inventory of all assets, with records of their location, value, condition, and description of their status in relation to any proceedings before the Court ; (i) recommend reparations to victims of crime, where proceeds have been recovered; and (j) carry out such other necessary or expedient functions as may be assigned to it by the head of the relevant organisation to ensure the efficient performance of its functions under this Act.

4. The relevant organisation may subject to the provisions of this Act, Powers of execute such contracts or other arrangements, as it considers necessary and, the relevant in particular- organisation. (a) engage contractors, asset managers, auctioneers, accountants, consultants, brokerage companies, investment advisers, financial investigators and other experts for the effective performance of its functions under this Act ; (b) dispose assets subject to forfeiture order of a Court that- (i) are perishable or susceptible to deterioration, or (ii) may be excessively burdensome or expensive to maintain or administer, leading to a reduction of the recoverable amount; (c) do anything it considers appropriate for facilitating, or which is incidental to the performance of its functions.

5.-(1) Subject to the provisions of this Act, the Directorate shall— Role of the (a) be informed of any property seized in the course of investigation, Directorate within 14 days or soon thereafter for the purpose of documentation ; in the (b) take possession of property subject to forfeiture order from any process of person or entity in possession or entitled to possession of the property, and management may appoint a receiver for that purpose ; and of (c) subject to the specific orders of the Court, transfer for its effective forfeited management any forfeited property within 30 days. properties.

(2) Properties forfeited shall be vested in the relevant organisation for and on behalf of the Federal Government of Nigeria.

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Co-operation between relevant organisation and other entities.

Application of this Part.

Nature of proceedings under this Part.

Preservation order.

Proceeds of Crime (Recovery and Management) Act, 2022

PART III-RELATIONSHIP BETWEEN THE RELEVANT ORGANISATION AND OTHER ENTITIES

6.-(1) In the performance of their functions and exercise of their powers under this Act, the relevant organisation shall cooperate with other relevant entities.

(2) In this section, “other relevant entities" includes any other institution or authority not listed as relevant organisation.

PART IV-NON-CONVICTION BASED RECOVERY OF THE PROCEEDS OF CRIME

7. This Part applies to the recovery and forfeiture of proceeds of crime, instrumentality of unlawful activity, abandoned properties or unclaimed properties reasonably suspected to be proceeds of unlawful activity, without conviction.

8.-(1) Subject to the provisions of this Act-

(a) proceedings under this Part shall be civil proceedings ; and

(b) the standard of proof required in proceedings under this Part shall be on a balance of probabilities.

(2) The rules or practice relating to hearsay evidence, given in furtherance of the proceeding is admissible.

9.-(1) A preservation order shall be granted by the Court to preserve property reasonably suspected to have been derived from unlawful activities and represents instrumentality of unlawful activity or unclaimed property.

(2) The relevant organisation may, by an ex parte application, apply to the Court for a preservation order restraining a person from dealing in any manner with any property, subject to such conditions and exceptions as may be specified in the order.

(3) The Court shall make an order under subsection (2), where there are reasonable grounds to believe that the property concerned—

(a) represents the proceeds of unlawful activity, whether they are-

(i) in the hands of the person who unlawfully acquired the property in the first instance, or (ii) traced to any person to whom the property that represents the proceeds have been passed;

(b) is involved in the facilitation of unlawful activity ; or (c) is intended to be used to facilitate unlawful activity.

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(4) Where further property has been acquired as a result or profits accruing from the proceeds of unlawful activity, that further property shall be treated as the proceeds of unlawful activity.

(5) Where property referred to in subsection (3) is comingled with other property, this section applies to the portion of the property, resulting from unlawful activity.

(6) The Court may make an ancillary order if —

(a) a person disposes of any property mentioned in subsection (3); and

(b) the person, who obtains the property disposed of, does so in good faith, for value and without notice that it was property mentioned in subsection (3).

(7) A Court making a preservation order may at the same time make any other ancillary orders that it considers appropriate for the proper, fair and effective execution of the preservation order.

(8) Upon the grant of a preservation order by the Court, the Directorate of the relevant organisation shall take possession of the property from any person in possession or entitled to possession of the property and may appoint a receiver in order to do so.

10.-(1) The Court in making a preservation order, may direct the relevant Notice of organisation to within 14 days after the making of the order notify any interested preservation party of the preservation order by publishing same in any widely circulating order. national newspaper.

(2) A person, who has an interest in any property that is subject to a preservation order may give notice of his intention to-

(a) oppose the making of the preservation order ; or

(b) apply for an order excluding his interest in the property concerned from the operation of the preservation order.

(3) A notice under subsection (2) shall be filed and served on the relevant organisation within 14 days of the publication of preservation order.

(4) A notice given under subsection (2) shall contain full particulars of the address for the service of documents concerning further proceedings under this Part, and shall be accompanied by an affidavit stating the—

(a) full particulars of the identity of a person entering appearance ;

(b) nature and extent of his interest in the property concerned ; and

(c) reasons which the person intends to rely on in opposing the preservation order or applying for the exclusion of his interest from the operation of the preservation order.

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Duration of a Preservation Order.

Renewal of preservation order.

Disposal of property subject to preservation order.

Appointment of asset manager for property subject to a preservation order.

Proceeds of Crime (Recovery and Management) Act, 2022

11. A preservation order shall, subject to section 24 of this Act, expire 60 days after the date on which it was made, unless-

(a) there is an application for a forfeiture order pending before the Court in respect of the property subject to the preservation order ;

(b) there is an unsatisfied forfeiture order in force, in relation to the property subject to the preservation order ; or (c) the preservation order is rescinded before the expiration of that period.

12.-(1) The relevant organisation may apply to the Court that granted a preservation order under this Act for a renewal of the order, where-

(a) the preservation order has not been set aside ; and

(b) there are reasonable grounds to grant the renewal.

(2) The cumulative period of renewals shall not exceed 180 days.

13.-(1) Where there are reasonable grounds to believe that a property, which is subject to a preservation order, may have its value diminished, or be disposed of, destroyed, or damaged, removed contrary to the order or may deteriorate in terms of quality or utility, the relevant organisation shall promptly apply to the Court ex-parte for an order to sell the property at the prevailing market value.

(2) The proceeds from the sale of any property under subsection (1) shall be invested in the Central Bank of Nigeria treasury bills, pending the determination of the proceedings.

(3) Where a preservation order is set aside or the sales revoked by order of Court, the relevant organisation shall, after exercising its right of appeal, pay to the owner of the property the proceeds of sales together with accrued interest where applicable.

14.-(1) Where the Court has made a preservation order, it may direct the relevant organisation to-

(a) appoint an asset manager to—

(i) assume control of the property,

(ii) administer the property and do any act necessary for that purpose,

(iii) carry on the business or undertaking, where the property is an on-going business or undertaking, with due regard to any applicable law,

(iv) sell or otherwise dispose of the property, in the case of property that is perishable, or liable to deterioration, decay or injury by being detained in custody, and

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(v) sell or otherwise dispose of the property where it is not economically viable to maintain ; (b) order a person holding any property subject to a preservation order to surrender the property into the custody of the asset manager, immediately or within such period as the Court may determine ; and (c) serve the preservation order on the relevant organisation for the purpose of documentation and accurate data management.

(2) Where any property subject to a preservation order is not surrendered within the period that has been determined under subsection (1) (b), an authorised officer of the relevant organisation may enter by force, if necessary, any premises, where he reasonably believes the property is situate, in order to search for and seize the property.

(3) Appointed asset managers may be accompanied by authorised officers of the relevant organisation or law enforcement officers as are reasonably required in order to effect entry into premises.

15.-(1) The Court making a preservation order may direct the Orders in appropriate land registration authority to place a restriction on the land register, respect of in respect of the immovable property. immovable property (2) An order of restriction made under subsection (1) may specify that subject to a the immovable property shall not, without the consent of the Court preservation (a) be mortgaged or otherwise encumbered ; order. (b) be attached or sold in execution ; (c) vest in the official receiver concerned, when the estate of the owner of that immovable property is sequestrated ; and (d) form part of the assets of any company or body corporate, where the owner of the immovable property is a company or other body corporate, which is being wound up.

(3) Subject to subsection (1), the registration authority shall—

(a) enter the restriction in its register and endorse the office copy of the title deed to that effect; and (b) endorse on the original of the title deed, when it is produced.

(4) The restriction referred to in subsection (3) (a) shall-

(a) be effective against any person, in whose favour a mortgage or other charge was registered, prior to the endorsement of the restriction on the title deed of the immovable property ; and (b) lapse on the lawful transfer of ownership of the immovable property concerned.

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Variation and rescission of order.

Application for forfeiture order.

Service of notice out of time.

Proceeds of Crime (Recovery and Management) Act, 2022

(5) A person affected by an order specified in subsection (1) may, at any time, upon showing good cause, apply for the rescission of the order.

16. The Court that makes a preservation order-

(a) may, on application by the person affected by the order, vary the preservation order, authorise the seizure of the property concerned, or any other ancillary order, as it may deem appropriate ; or (b) may rescind the preservation order when the proceedings against the defendant concerned are concluded in the person's favour.

17.-(1) Where a preservation order is in force and before the expiration of the stipulated time, the relevant organisation may apply to the Court by way of motion of notice for a forfeiture order against all or any part of the property that is subject to the preservation order.

(2) The relevant organisation shall give 14 days notice of an application under subsection (1) to every person who pursuant to the notice given under section 10 (1) of this Act had shown interest in the property sought to be forfeited.

(3) A person who pursuant to the notice given under section 10 (1) of this Act may, subject to compliance with section 10(2) and (3), appear at the hearing of the application under subsection (1) to

(a) oppose the making of the order ; or

(b) apply for an order—

(i) excluding his interest in the property from the operation of the order, or (ii) varying the operation of the order in respect of the property, and may adduce evidence at the hearing of the application.

(4) Where the Court grants the forfeiture order, the property referred to in subsection (1) shall be forfeited to the Federal Government of Nigeria.

18.-(1) Where a person for any reason, failed to serve notice under section 10 (2) of this Act, he may apply to the Court for leave to serve the notice out of time.

(2) An application under subsection (1) may be made before the application for a final forfeiture is heard by the Court.

(3) The Court may grant leave to an applicant referred to in subsection (1), to serve notice under section 10 (2) of this Act within the period which the Court deems appropriate, where the Court is satisfied on good cause shown that the applicant has—

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(a) sufficient reason for failing to serve notice under section 10 (2) ; and (b) an interest in the property that is subject to the preservation order.

(4) A notice served after leave has been obtained under this section shall-

(a) contain full particulars of the address of the person who served the notice for the delivery of documents concerning further proceedings under this Part; and (b) be accompanied by the affidavit referred to in section 10 (3) of this Act.

(5) Where the Court has granted leave for notice under section 10 (2) of this Act to be served out of time under this section, it may direct the applicant to pay any or all of the costs that have arisen or may arise as a result of the notice being served out of time.

19.-(1) Subject to section 22 of this Act, the Court shall make a forfeiture Making of order under this Act where it finds on a balance of probabilities that the property a forfeiture concerned is reasonably suspected to order. (a) be proceeds of unlawful activity ; (b) represent whether directly or indirectly the proceeds of unlawful activity; (c) be involved in the facilitation of unlawful activity; or (d) be intentionally used for unlawful activity.

(2) The Court may-

(a) where it makes a forfeiture order, or (b) at any time after making the order, make any ancillary order that it considers appropriate, including orders for and with respect to facilitating the transfer of property forfeited to the relevant organisation, on behalf of the Federal Government of Nigeria.

(3) The absence of a person whose interest in property may be affected by a forfeiture order shall not prevent the Court from making the order.

(4) The validity of an order under subsection (1) shall not be affected by the outcome of criminal proceedings or of an investigation with a view to instituting those proceedings, in respect of an offence with which the property concerned may be associated.

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Effect of appeals on preservation or other ancillary orders.

Effect of forfeiture order.

Fulfillment of forfeiture order

Unlawful activities or conduct forming the basis of multiple orders.

Proceeds of Crime (Recovery and Management) Act, 2022

20. A preservation order and any order authorising the seizure of the property concerned or other ancillary order that is in force at the time of any decision regarding the making of a forfeiture order under this Act shall remain in force pending the outcome of any appeal against the decision concerned.

21.-(1) With effect from the date when the Court makes a forfeiture order, the property subject to the order is forfeited to Federal Government of Nigeria.

(2) On a forfeiture order taking effect, the relevant organisation shall promptly handover to the Directorate, the forfeited property.

22.-(1) The Directorate of the relevant organisation shall, in accordance with the directions of the Court-

(a) deposit any money forfeited under this Act into the Confiscated and Forfeited Properties Account established under section 68 of this Act ; or (b) dispose of the property forfeited by sale or any other means and deposit the proceeds of the sale or disposition into the said account.

(2) Subject to the provisions of this Act, any right or interest in forfeited property not exercisable by or transferable to the relevant organisation, shall expire and shall not revert to the person, who had possession, or was entitled to possession of the property immediately before the forfeiture order took effect.

(3) A person referred to in subsection (2) or any other person, who acts with or on behalf of the person—

(a) commits an offence, if he purchases or attempts to purchase the forfeited property; and (b) is liable on conviction to a fine of at least twice the value of the property sold.

(4) The expenses incurred in connection with the forfeiture and the sale, including expenses of seizure, maintenance and custody of the property pending its disposition, advertisement, and the Court costs shall be defrayed out of the designated account.

23. The fact that a preservation order or a forfeiture order has been made on the basis of unlawful activity or conduct in which a specific person has been involved shall not prevent the making of another or other preservation orders or forfeiture orders on the basis of the same unlawful activity or conduct.

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24.-(1) A notice authorised or required to be given to a person under Application this Part shall, in the case of a deceased person, be sufficiently given to the of this Part administrator or executor of the deceased person's estate, or to a person to deceased estates. acting in that capacity.

(2) A reference in this section to the property of a person shall, in the case of a deceased person, be a reference to property that the deceased person held immediately before his death.

(3) An order may be applied for and made under this section—

(a) in respect of property, which forms part of a deceased person's estate; and (b) on evidence adduced concerning the activities of a deceased person.

25.-(1) Where a person has an interest in property, as a joint owner, Effect of his death after a preservation order is made in respect of the interest does not, death of while the order is in force, operate to vest the interest in the surviving joint joint owner owner or owners, and the preservation order shall continue to apply to the of property under a interest, as if the person had not died. preservation (2) A forfeiture order made in respect of the interest referred to in order. subsection (1) shall apply, as if the order took effect in relation to the interest immediately before the person died.

(3) Subsection (1) does not apply to the interest in property where a preservation order ceases to apply to that interest without a forfeiture order being made in respect of that interest.

PART V-RECOVERY OF CASH

26.-(1) A designated officer may seize and detain any cash in the Seizure and process of being moved within or outside Nigeria, where he has reasonable detention of cash. grounds to suspect that it-

(a) directly or indirectly represents proceeds of unlawful activity or is intended to be an instrumentality of an offence ; or (b) is above the prescribed amount under the law and has not be declared to the appropriate authorities.

(2) In this Part-

(a) "cash" includes-

(i) notes and coins in any currency, (ii) cheques of any kind, including travelers' cheques, (iii) bankers' draft, (iv) bearer bonds and bearer shares, and (v) jewelries and gold, and

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Act No. 11,2011.

Cap. C45, LFN, 2004.

Cap. F34, LFN, 2004.

Detention of seized cash.

Proceeds of Crime (Recovery and Management) Act, 2022

(b) "designated officer" means an officer of Nigeria Customs Service, National Drug Law Enforcement Agency, Economic and Financial Crimes Commission, Nigeria Police Force, Nigeria Immigration Service and officers of other relevant organisations.

(3) The "prescribed amount” in