One of the biggest challenges to the recovery of 'ill-gotten gains' in many countries including Nigeria has been 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 assets in many common-law jurisdictions (which includes Nigeria). The prosecutions usually await a finding of guilt on a particular criminal offence, and then seek a forfeiture order with respect to property derived from or used in the commission of that criminal offence.

Recently, the Supreme Court of Nigeria in the case of Dauda v Federal Republic of Nigeria (2018) 10 NWLR (Pt.1626) 169 had the opportunity to decide on the issue of burden of proof with respect to unexplained wealth. This article seeks to examine the issues in the decision, particularly in relation to burden of proof and the effect of the decision on the Nigerian criminal law jurisprudence.

The facts

The Economic and Financial Crimes Commission (EFCC) preferred a 208 counts charge against the accused/appellant before the Federal High Court, Lokoja. The appellant was however convicted on 75 counts. The appellant appealed against this decision to the Court of Appeal, Abuja which was dismissed and further appealed to the Supreme Court.

The appellant in the case appealed among other grounds on the basis that the trial judge contended that the onus is on the appellant’s to establish the lawfulness or legality of each lodgment made into the accounts. The appellant submitted that the trial judge by postulating such position reversed the time-honored rule that “the burden of proof in criminal matters lies on the prosecution.” The appellant contended that the trial court and the Court of Appeal court failed to ascertain whether the ingredients of the offence of money laundering was established beyond reasonable doubt by the prosecution but decided to shift the onus of proof to the appellant.

The appellant argued that by shifting the burden of proof to the appellant, his presumption of innocence, which is a right constitutionally guaranteed was breached by the trial Court and the Court of Appeal whilst arguing that the Nigeria Criminal jurisprudence puts the burden on the prosecution to prove that the appellant has committed a crime or illegal act. 

In resolving the issues raised by the appellant, the Supreme Court stated that:

“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”.


Many legal practitioners have argued in that the decision of the Supreme Court in Dauda v Federal Republic of Nigeria has significantly altered the age-long principle of our jurisprudence, which stipulates that it is the burden of the prosecution to prove the guilt of the accused beyond reasonable doubt. The decision of the Supreme Court appears to reiterate and reinforce the age-long principle of our criminal jurisprudence.

Generally, the prosecution bears the legal burden of proving the defining elements of an offence, as well as the absence of any defence. However, the accused will generally bear an evidential burden of proof in relation to defence. The prosecutor has to adduce evidence in support of the facts in issue, which pertain to the ingredients of the offence beyond reasonable doubt. The principle of presumption of innocence to which any criminally accused person is entitled compels prosecuting authorities to bear this initial evidential burden. After the prosecution closed its case, the accused is to enter into its defence. It is at this point that the accused will be required to shoulder and to discharge its burden by leading rebuttal or counter-evidence. This is the point whereupon there would be a “shift of burden of proof”.

More appropriately, this is referred to as the ‘placing of an evidential burden on an opponent’ or, as ‘a shift of the evidential burden of proof from the prosecutor to the accused. The evidential burden of proof would continue to shift in a criminal proceeding on the party who would fail if no evidence at all, or no more evidence, as the case may be, were given on either side.

In the instant case, 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 a 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.

Zamira’s case

The decision of the Supreme Court on the accused obligation to explain how he acquired the wealth seems to align with global developments and trends on unexplained wealth. A few months ago, the High Court of England ordered Zamira to explain how the 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.


The legal burden to prove beyond reasonable doubt continues to rest on the prosecution in the Nigerian 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 (or to prove innocence) 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.