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