Below are excerpts of what the All Progressives Congress (APC) presidential and vice presidential candidates, Alhaji Bola Ahmed Tinubu and Senator Kashim Ibrahim Shettima, respectively, told the Presidential Election Petition Court (PEPC) respecting the $460,000 drug cum criminal forfeiture case.
Tinubu/Shettima made the remarks in their response of the petition filed at the Presidential Election Petition Tribunal by Mr. Peter Gregory Obi and his Labour Party (LP).
Documents released by the court in the United States had shown that the $460,000 forfeited by the All Progressives Congress presidential candidate were money sourced from drug trafficking.
According to the 18 U.S. Code § 1956 – Laundering of Monetary Instruments seen by News Band, the property forfeiture sentence slammed on Tinubu, “represent proceeds of narcotics trafficking”.
Read also:
VIDEO: Tinubu’s $460,000 forfeiture is drug money, documents clear on this
However, in his defence Tinubu claimed otherwise. Read what he told the Tribunal below:
The US Proceedings
We must at this point, indicate that the sole basis for the petitioners’ vituperation in relation to the purported US forfeiture proceedings, is Exhibit PAS (the US judgment) tendered by them. Without prejudice to the case made in respect to the inadmissibility of the said Exhibit PAS series, we note that the two witnesses that purported to give evidence in respect of the allegation and the said Exhibit PA5 series, were PW I and PWI2. However, PWI was unable to point to a single mention of the word “fine” in any of the documents forming part of the proceedings tendered as Exhibit PA5, which he admitted had not been registered in Nigeria in line with the clear provisions of section 3 of the Reciprocal Enforcement of Foreign Judgments Ordinance and Foreign Judgment (Reciprocal Enforcement) Act.
The essence of registration before it can be activated or applied in Nigeria at all, is that the Nigerian court must satisfy itself that within the laws of Nigeria, it can give such judgment. Upon registration, it becomes a Nigerian judgment by virtue of the order for registration, and can then be enforced, relied upon, or put in use. Not only that, both witnesses could not provide any “certificate purporting to be given under the hand of a police officer” from the US, “containing a copy of the sentence or order and the fingerprints of the [2nd respondent] or photographs of the fingerprints of the [said 2nd respondent], together with evidence that the fingerprints of the person so convicted are those of the (2nd respondent].”
These are the strict prescriptions under section 249 of the Evidence Act, for the proof of previous conviction of a person outside the Nigerian jurisdiction. Not only did the petitioners fail to meet the requirement for proof of conviction outside Nigeria, even the general proof as stated under section 248 of the Evidence Act, which is even minimal, with respect to simply providing the certificate of conviction under the hand of the registrar or such other relevant officer of the court where the conviction was made, was not met.
It goes without saying that the petitioners have failed to prove this portion of their petition beyond reasonable doubt, as required under and by virtue of section 135 of the Evidence Act. See Ogboru v. Ibori (2006) 17 NWLR (Pt. 1009) 542 at 588. In any event, PWI confirmed that the proceedings in Exhibit PAS series are civil proceedings, while equally admitting that he never mentioned anything about charge in the proceedings and he does not have one.
The implication of the evidence of this witness is that not only is there a clear admission of the fact that the proceedings being referenced by them is not criminal in nature and would not have amounted to a conviction under section 137 of the Constitution, assuming without conceding that same amounts to a conviction, then the conditions precedent for the proof of the criminal allegations are far from being met by these petitioners.
Meanwhile, while PW I admitted that he had only visited the US once in his life in 2003, thus, subjecting his capacity to testify on the subject to doubt, respondents’ witness, a US attorney and counsellor at law, gave very cogent evidence on the state of the US law, while indicating that under the US law, just like in Nigeria, there cannot be a conviction without a charge, plea and an indictment and that the said US proceedings were totally civil in nature.
The flimsiness of this allegation and the irrelevance of Exhibit PA5, notwithstanding, the respondents tendered in evidence, Exhibit RA9 which is a document proceeding from the US authorities to the Nigerian authorities, attesting to the fact that upon a thorough combing of the Federal Bureau of Investigation (FBI) National Crime Information Center (NCIC), it is evident that the respondent maintains a clean record in the US.
The letter even goes on to state for the avoidance of doubt, that “the NCIC is a centralized information center that maintains the record of every criminal arrest and conviction within the United States and its territories.” We submit that in the face of this conspicuous exoneration, which authenticity and relevance remain unchallenged, the petitioners ought to have apologetically dropped this arm of their petition, while withdrawing the petition in its entirety.
Non-Conviction Based Forfeiture (NCBF)
Without prejudice to the foregoing submissions, Exhibit PA5 can be classified juridically as a Non-Conviction Based Forfeiture (NCBF), that is, a forfeiture not associated with criminal conviction or sentencing. Article 54(1) (C) of the United Nations Convention Against Corruption states:
“Each State Party, in order to provide mutual legal assistance pursuant to article 55 of this Convention with respect to property acquired through or involved in the commission of an offence established in accordance with this Convention, shall, in accordance with its domestic law…(c) Consider taking such measures as may be necessary to allow confiscation of such property without a criminal conviction in cases in which the offender cannot be prosecuted…” (Underlining for emphasis).
NCBF is statutorily codified under Nigerian Law. See sections 13(I)(d) and 24 of the Economic and Financial Crimes Commission (Establishment) Act 2004 (EFCC Act); section 48 of the Corrupt Practices and Other Related Offences Act, 2000; section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act 2006. NCBF is distinct from Conviction Based Forfeiture. With the latter, forfeiture is prescribed as a punishment for an offence in accordance with the provisions of section 36 (12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (Constitution). See section 28 of the Economic and Financial Commission (Establishment) Act 2004 (EFCC Act).
NCBF is typically the outcome of an in rem proceedings. See: Oti v EFCC (2020) 14 NWLR (Pt. 1743) 48, 90 – 91. It does not involve trial or conviction for an offence. The distinction is inherent in the EFCC Act. While sections 13 (1)(d) and 24 of the EFCC Act provide for NCBF, sections 20 and 30 of the EFCC Act make provision for forfeiture pursuant to a conviction. In addition to the foregoing, and assuming without ever conceding that Exhibit PBF I is remotely connected with criminal forfeiture, section 137 (1) (e) of the Constitution gives an expiration period of a maximum of 10 years for the subsistence of that conviction and sentence, after which the convict could contest an election to the office of President of Nigeria.
Be it noted that the said section talks of conviction and sentence, a situation which is graver and more potent than a purported civil forfeiture in a foreign land. In effect, within the Nigerian law, Exhibit PA5, purportedly delivered in 1993,30 years back, has become effluxed by virtue of the constitutional provision. Not done yet, and in order not to leave anyone in doubt that he has no criminal record in the US at all, the respondents tendered Exhibits RA13-RA16, all to the effect that throughout all these past years, the 2′ respondent has always enjoyed rights of ingress and egress to and from the US, a right which anyone who is burdened by a criminal forfeiture cannot enjoy. Res ipsa loquitor is the applicable maxim in this regard. Read more.
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