Peter Obi, the Labour Party’s (LP) candidate in the 2023 presidential election, has requested the Presidential Election Petition Court to uphold the order from the United States District Court, Northern District of Illinois, Eastern Division.
This order pertains to the case involving President Bola Tinubu of the ruling All Progressives Congress (APC), who was found guilty of forfeiting $460,000 as proceeds of narcotics trafficking and money laundering.
In his concluding written statement in response to President Tinubu and Vice President Kashim Shettima’s final written address at the 2023 Presidential Election Petition Tribunal, Obi asserted that Tinubu has not contested the US court order in any appropriate court since its issuance in 1993 up until the present time.
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He stated that his submission is based on the ruling of the United States District Court, Northern District of Illinois, Eastern Division, in Case No: 93C 4483. The court order stated that the funds amounting to $460,000 in account 263226700, held by First Heritage Bank under the name of Bola Tinubu, were determined to be either derived from drug trafficking or involved in financial transactions that violated 18 USC §1956 and 1957. The decision, encapsulated in the Order, is tendered as Exhibit PA5 before this Honourable Court.
The Order mentioned above, issued by the United States District Court, follows a ‘Settlement Order of Claims to Funds held by Heritage Bank and Citibank’. In this order, Bola Tinubu (2nd Respondent) and others assert their ownership of the funds in the mentioned accounts. The second respondent has not yet challenged the order of forfeiture made by the US court, as indicated above.
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Obi emphasised the importance of highlighting the key details in the Proceeding in Exhibit PA5 (Forfeiture Proceedings). Specifically, it is crucial to note that the Order was primarily based on the revelation/finding in the Affidavit of Kevin Moss, a Special Agent and investigator specialising in financial crime, money laundering, and narcotics trafficking. The Affidavit revealed, among other things, that interviews with investigators from the US Customs Service uncovered that the address at 7504 S. Stewart Avenue is known as a drop-off point for packages from Nigeria containing white heroin. Additionally, it was discovered that in the application to open his account at First Heritage Bank in Chicago, Illinois, the 2nd Respondent, Tinubu, stated his address as 7504 South Stewart, Chicago, Illinois.
According to him, the provision of Section 137 (1) (d) of the 1999 Constitution is clear, explicit, unambiguous, and provides as follows: “A person shall not be qualified for election to the office of President if -”
“He is subject to a death sentence handed down by a legally authorised court or tribunal in Nigeria, or a sentence of imprisonment or fine for any offence related to dishonesty or fraud (regardless of its name), or for any other offence imposed on him by a court or tribunal, or replaced by a competent authority for any other sentence imposed on him by such a court or tribunal; or” (emphasis added).
He added, “We respectfully invite Your Lordships to uphold that the above sub-section, by the use of the word ‘OR’ in the several instances envisaged therein, envisages a disjunctive meaning and interpretation for those several instances. Therefore, the ordinary plain meaning of the sub-section is that a person shall not be qualified for the office of the President if, among other things, he is under a fine for any offence involving dishonesty or fraud (by whatever name called) imposed on him by any Court or Tribunal.”
It is argued that the Order of Forfeiture imposed on the 2nd Respondent by the US Court, as stated above, represents a fine. This fine is related to an offence that pertains to dishonesty or fraud committed within a court.
Respectfully, the submissions made on pages 22-25 of the Written Address appear to be incorrect and do not accurately reflect the prevailing legal position. It is argued that the 2nd and 3rd Respondents have a misconception regarding the disqualification of a person from contesting for the office of the President. They mistakenly rely on Section 137 (1) (e) of the 1999 Constitution, believing that a conviction is necessary before disqualification can occur. The Petitioner’s case does not rely on Section 137 (1) (e), but instead on the provisions of Section 137 (1) (d) of the 1999 Constitution.
The 2nd and 3rd Respondents also try to undermine the credibility of PW1’s evidence by arguing that his visit to the United States in 2003 is irrelevant. Exhibit PA5 is a certified, sealed, notarized, and authenticated documentary evidence issued by the United States Court.
He further stated, “We respectfully request that Your Lordships dismiss the argument put forth by the 2nd and 3rd Respondents, which suggests that Exhibit PA5 has not been registered in Nigeria. They claim that such registration is mandated by the provisions of Section 3 of the Reciprocal Enforcement of Foreign Judgements Ordinance and Foreign Judgement (Reciprocal Enforcement) Act.”
He argued in court that Section 3 of the Reciprocal Enforcement of Foreign Judgements Ordinance and the Foreign Judgement (Reciprocal Enforcement) Act, which Tinubu and Shettima heavily relied on, are entirely irrelevant to the current Petition.
Respectfully, esteemed Lords, the crucial matter at hand is whether a civil forfeiture under US Law, as indicated in Exhibit PA5, can be deemed equivalent to a fine as outlined in Section 137 (1) (d) of the 1999 Constitution. Based on settled case law in the US and legal literature, the answer is affirmative.
A civil forfeiture in the US can be considered a form of fine or punitive economic sanction. It is important to note that it is, to some extent, punitive towards the individuals whose property is impacted. Why did Timb challenge the forfeiture proceedings, considering he would not be personally affected? Can it be argued, in all honesty, that the 2nd Respondent in this case did not experience economic sanctions when he willingly surrendered 460,000 USD to the US Government?
It is argued that the decision of the US Supreme Court mentioned earlier holds greater weight than the evidence presented by the Respondents and the text authored by TS Greenburg et al, titled A Good Practise Guide for Non-Conviction Based Asset Forfeiture (World Bank 2009) 13, which is cited by the 2nd and 3rd Respondents on pages 24-25 of their Final Written Address.
Respectfully, esteemed Lords, I would like to bring to your attention that according to Nigerian law, the term “fine” mentioned in Section 137 (1) (d) of the 1999 Constitution, as amended, can also be interpreted as encompassing an Order of Forfeiture against the 2nd Respondent.
Under the Administration of Criminal Justice Act 2015 (ACJA), the Interpretation Section provides a definition for the term “fine.” According to this section, the term “fine” encompasses any pecuniary forfeiture or pecuniary compensation that is required to be paid under the provisions of this act. A penalty encompasses any pecuniary fine, cost, forfeiture, or compensation that can be recovered under an order.
The United States District Court, Northern District of Illinois, which issued the Fine Order against the 2nd Respondent, falls under the definition of ‘any court’ as stipulated in section 137 (1) (d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
