Unexplained Wealth Order Vis-à-vis Plea Bargain: What is the Best Way to Battle Corrupt Practices in Nigeria in the Light of the Decision in Daudu V. Federal Republic of Nigeria?


by Musharaf R. Olabisi, Esq.


In the Nigerian Administration of Criminal Justice System, the burden of proof is on the Prosecution and the Prosecution is to proof beyond reasonable doubt to have established a prima facie case before the Defendant or Accused can enter defence. Failure of the Prosecution to establish a prima facie case against the Defendant or Accused will leave the Defendant or Accused no case to answer or resting the case of the Defendant or Accused on the case of the Prosecution. Though, the proof beyond reasonable doubt is not construed to mean proof beyond all iota of doubt. See Musa v. State (2021) LPELR- 57772(SC).

It suffices to say in other words that, the Nigeria Administration of Criminal Justice is accusatorial. Hence, until and unless the Prosecution proves the case beyond reasonable doubt, the Defendant or Accused will have no case to answer. The constitutional provision of Section 36(5) of Federal Republic of Nigeria, 1999, (as amended) is to the effect that Defendant or Accused is presumed innocent until proved guilty.

Therefore, the Prosecution has the burden of proof in the Nigerian Administration of Criminal Justice. Although, the proviso to the provision of section 36(5) of the Constitution is that if there is a law that imposes upon a Defendant or Accused the burden of proving particular facts, the provision of that law is not in contradiction of the Constitution. It has become apparent that the Prosecution finds it difficult most times to discharge the burden or responsibility of proof they are saddled with. As a result, there is no discouraging factor for the commission of crimes particularly corrupt practices.

On the above premise, this paper will examine the concept of unexplained wealth order vis-à-vis plea bargain in the light of the decision in Daudu v. F.R.N (2018) 10 NWLR (Pt 1626) 169 in battling corrupt practices in Nigeria.


The Unexplained Wealth Order (UWO) was provided for under Part 8, Sections 362A-362T of Proceeds of Crime Act, 2002 and the Criminal Finances Act, 2017 for the confiscation and/or civil recovery of the proceeds of crime and matter related or connected thereto by the British Government. It is an order of the British Government to compel a suspect to reveal the source(s) of the unexplained wealth. The suspect is required to appear in court to account and explain the source(s) of the unexplained wealth, that is, the onus of proof is on the suspect as in the reverse onus. If the court is satisfied that the suspect has reasonably discharged the onus on him, then, the property or assets will be released to him or her. But where the suspect failed to appear or failed in accounting or discharging the onus of proof on him, the assets and property of the unexplained wealth will be seized by the court and forfeited to the State. In other words, the unexplained wealth order granted by the court will be served on the suspect to show cause why the order should not be made absolute and/or executed against him. If the suspect could explain the source(s), then the order will be vacated and therefore become ineffective.

All pieces of information gathered or obtained in the context of an unexplained wealth order is without prejudice and cannot be used against the suspect in a criminal proceeding. Hence, the Unexplained Wealth Order is a civil remedy for recovery of crimes proceeds as well as money laundering practices, and the States close their eyes to punishment of the crime perpetrators and proceed against the recovery of the assets, proceeds of crime solely.


The concept of plea bargain is a negotiation between a Prosecution and a criminal Defendant whereby the Defendant pleads guilty to a lesser offence or to one of multiple charges in exchange for some concession by the Prosecutor usually on more lenient sentence or a dismissal of the other charges. Plea bargain was alien to Nigerian Administration of Criminal Justice System but was introduced by virtue of section 14(2) of the Economic and Financial Crimes Commission Act, Laws of Federation of Nigeria, 2004 which provision is to the effect that the commission may compound any offence punishable under the Act by accepting such sum of money as it thinks fit not exceeding the maximum amount of which that Accused or Defendant would be liable to, if he had been convicted of the offence subject to the provisions of Section 174 of the Constitution. The provisions of Section 174(3) of the Constitution is to the extent that the Attorney-General of the Federation in exercising the powers conferred on him by the Constitution, shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.

In a bid for Nigeria government to recover proceeds of crime as well as punishment of the Defendant especially where the evidence of the Prosecution is insufficient to prove the offence charged beyond reasonable doubt, or the Defendant has agreed to return the proceeds of the crime or where the Prosecutor is of the view that the offer or acceptance of plea bargain is in the interest of justice, public interest, public policy and need to prevent abuse of legal process, plea bargain may be opted for. Plea bargain is concerned with both the recovery of proceeds of crime as well as punishing the Defendant for the commission of crime. The agreement entered into by both Prosecution and the Defendant will be tendered in court and the court is at liberty having considered the content of the agreement to either convict the Defendant in line with the agreement or convict for a lesser sentence other than the sentence in the agreement or convict for a heavier sentence other than the sentence in the agreement, whichever the court may deem fit in the circumstance of the case before it.

It must be said with emphasis that the Defendant may abide by or withdraw from the agreement after having knowledge of a heavier sentence to be passed on him and the trial will commence de novo before another judge or magistrate as the case may be, and no reference shall be made to the agreement and/or any information in relation to the plea bargain.


One of the biggest challenges to the recovery of ill-gotten wealth in Nigeria is establishing the nexus between suspicious assets and a specific offence. The requirement to establish this link is a pre-requisite to the lawful confiscation of the assets. The Prosecution usually awaits a finding of guilt on a particular criminal offence, and then seeks a forfeiture order with respect to property derived from or used in the commission of that criminal offence. However, in the recent case of Daudu v F.R.N (Supra), the Supreme Court had the opportunity to decide on the issue of burden of proof with respect to unexplained wealth.

Summarily, the fact of the above case was that the Respondent preferred a 208 counts charge against the Appellant before the federal High Court, Lokoja. He pleaded not guilty to each of the counts and trial commenced. At the conclusion of trial, the Appellant was convicted on 75 counts while he was acquitted and discharged on the remaining 133 counts. The Appellant appealed against the decision to the Court of Appeal Abuja, but the Court dismissed his appeal and he appealed further to the Supreme Court. One of the issues before the Apex Court was: whether the Court of Appeal was correct in law when it affirmed the decision of the Federal High Court placing the onus of proving his innocence in the 75 counts of money laundering on the Appellant? In answering the above issue, Per Kumai Bayang Aka’ahs, JSC held thus:

“Proving Money Laundering cases is a herculean task because it requires a prior establishment of the predicate offence before the money laundering aspect can be established. To obviate this problem a remedy was introduced by statutorily inferring money laundering from not only the conduct of the defendant but his lifestyle which is similar to the Proceeds of Crime Act 2002 of the UK. Even though Section 36(5) of the 1999 Constitution provides that every person charged with a criminal offence shall be presumed to be innocent until he is proven guilty, the proviso allows for shifting the burden of proof on the defendant. The Section provides thus: – “36(5) Every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty provided that nothing in this Section shall invalidate any law by reason only that the law imposes upon any person the burden of proving particular facts”. By Section 19(3) of the Money Laundering Act, if an accused person is in possession of pecuniary resources or property which is disproportionate to his known source of income, or he obtained an accretion to his pecuniary resources or property, the burden of giving a satisfactory account of how he made the money or obtained the accretion shifts to him. The prosecution is relieved of the burden of having to prove that the money so found in his account or in his possession is proceeds from illicit traffic in narcotic drugs or psychotropic substances or of any illegal act. To explain the point further, where A is a fixed salary earner and suddenly his account is credited with an amount beyond his income or has property which his legitimate income cannot afford, the burden shifts to him to explain how he got the money with which he bought the property or the legitimate transaction he was engaged in for which the account was credited.”

In the instant case, the Court held that once the Prosecution is able to establish the ingredients of the offence beyond reasonable doubt, having placed sufficient evidence on the guilt of the Appellant either by direct or circumstantial or presumptive evidence beyond reasonable doubt required by law, the onus is on the Accused to attack or rebut the evidence so presented by contrary evidence to what the Prosecution has laid out. The request of this obligation would not amount to shifting of the burden of proof on the Accused to prove his innocence.

The said decision of the Supreme Court on the Accused obligation to explain how he acquired the wealth appears to align with global developments and trends on unexplained wealth. Sometimes ago, the High Court of England ordered Zamira to explain how her properties were obtained within a short period of time as her income appears to be insufficient to afford those properties and lifestyle. Zamira was the subject of an Unexplained Wealth Orders (UWO) obtained by the UK National Crime Agency (NCA). The UWO is the power of law enforcement agents to combat suspected corruption.

There are unreported cases of the High Court of Justice, Kwara State and the Federal High Court, Lagos Judicial division pertaining to suspected ill-gotten wealth that the courts have granted a forfeiture order absolute based on an interim application filed by the Government Agencies where the Defendant failed or refused to show cause.

In the unreported case of F.R.N v Abdul Ibrahim, the Court ordered the interim forfeiture of hotel, houses and other properties belonging to the Respondent, the interim order was published in the Nation Newspaper and all court processes were served alongside with the hearing notice to the Defendant but the Defendant failed to appear to explain why the said properties should not be forfeited to the Federal Government. Hence, the forfeiture order was made absolute.

Also, in the unreported case of F.R.N. v Kaiser Strategic Services Ltd on the forfeiture of N5,318,517,789 (Five Billion, Three Hundred and Eighteen Million, Five Hundred and Seventeen Thousand, Seven Hundred and Eighty-Nine Naira) warehoused in a new generation Bank by a company Kaiser Strategic Services Ltd, located at 9, Orioko, Ilorin, Kwara State. The sum was suspected to be unlawful proceeds of crime and steps were taken to invite the Managing Director to explain the source(s) of the sum but they failed to show cause before an application for the interim order of forfeiture was filed and served on them and also published in a national newspaper. However, they once again failed to appear and show cause why the interim order should not be made absolute on them.


The legal burden to prove beyond reasonable doubt continues to rest on the prosecution in the Nigeria criminal justice jurisprudence. An accused person is not required to open the case and to lead evidence to show or to prove his innocence. It would be antithetical to the principle of presumption of innocence and other fundamental societal values to require an Accused to make a defense or to disprove guilt before the Prosecutor has successfully established guilt. However, once the Prosecution is able to prove the ingredient of the offence of money laundering, the Accused is required to show the court the legitimacy of the said funds which is in tandem with the proviso of section 36(5) of the Constitution.


Flowing from the foregoing discussion, it is hereby recommended in addition to plea bargain that there should be a law established to broadly take care of recovery of ill-gotten wealth just like the Unexplained Wealth Order in the United Kingdom, as well as incorporate the interim order for forfeiture being used presently to recover ill-gotten wealth which serves similar purpose like the Unexplained Wealth Order so as to be able to tackle, reduce and/or eradicate corrupt practices and money laundering acts.



  • Administration of Criminal Justice Act, 2015
  • Constitution of Federal Republic of Nigeria, 1999, as altered
  • Criminal Finances Act, 2017
  • Economic and Financial Crimes Commission Act, 2004
  • The Proceeds of Crime Act, 2002
  • Daudu v F.R.N., 2018, 10 NWLR, Pt 1626,169
  • Danbaba v State, 2018, 11 NWLR, pt 1631, SC 426 @ 444-445, paras h-a
  • Musa v. State (2021) LPELR- 57772(SC)
  • Hajiyeva v National Crime Agency, 2020, ECWA CIV 108
  • Michael v State, 2021, LCN/15121, CA
  • Saraki v F.R.N, 2018, 16 NWLR, pt 1646, SC 405 @ 437, paras e-f, 462, para g


  • Black’s Law Dictionary, Ninth Ed.


  • Casciani D., 2020, unexplained wealth orders: suspected money launderer gives up £10m of property. BBC News. Retrieved 8 October 2020
  • Clifford A., 2017, New Frontiers: unexplained wealth, extraters, triality and rights, www.lexology.com. Bright line law. Retrieved 3 December 2020, via lexology
  • Home office, 2018, Criminal Finances Act: unexplained wealth orders, gov.uk.Her Majesty’s Government. Retrieved 3 December 2020
  • https://www.channelstv.com/2021/09/01/court-orders-interim-forfeiture-of-%E2%82%A65-3bn-linked-to-firm-in-kwara/
  • https://www.premiumtimesng.com/regional/north-central/354456-court-orders-final-forfeiture-of-hotel-houses-belonging-to-kwara-civil-servant.html
  • Marria V., 2018, How unexplained wealth order combats money laundering, forbes. Retrieved 31 October 2018


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