The candidate of the Labour Party (LP) in the presidential election held on the 25th day of February, 2023, Mr. Peter Gregory Obi, has informed the Presidential Election Petition Court (PEPC) that the unchallenged order of forfeiture meted out against the All Progressives Congress (APC) presidential candidate, Bola Ahmed Tinubu, is evidence that he is guilty of drug trafficking in the United States.

Peter Obi made the remarks in his Final Written Address to the Tribunal holden at the Court of Appeal in Abuja.

“The 2nd Respondent till date has not challenged the Order of Forfeiture made by the US Court as shown above,” Peter Obi informed the Tribunal. He stated as follows:

Unchallenged order of forfeiture made against 2nd Respondent by the United States District Court, Northern District of Illinois, Eastern Division, in case no: 93c 4483

The Petitioners submission on this Ground is predicated on the decision of the United States District Court, Northern District of Illinois, Eastern Division, in Case No: 93C 4483, which ordered “that the funds in the amount of $460,000 in account 263226700 held by First Heritage Bank in the name of Bola Tinubu represents the proceeds of narcotics trafficking or were involved in financial transactions in violation of 18 USC §1956 and 1957”. The decision encapsulated in the Order is tendered as Exhibit PA5 before this Honourable Court.

The above Order made by the United States District Court, was sequel to a “Settlement Order of Claims to Funds held by Heritage Bank and Citibank” wherein Bola Tinubu (2nd Respondent) and others, claimed ownership of the sums in the accounts. The 2nd Respondent till date has not challenged the Order of Forfeiture made by the US Court as shown above.

k2 It is important to underscore that the Proceeding in Exhibit PA5 above (Forfeiture Proceedings), the Order was based among under things by the revelation/finding in the Affidavit of Kevin Moss, a Special Agent and investigator on financial crime, money laundering and narcotics trafficking, inter alia that “interviews with investigators from the US Customs Service disclosed that the address at 7504 S. Stewart Avenue is known as a drop-off point for packages from Nigeria that contain white heroin” and that “in the application to open his account at First Heritage Bank, Illinois, Chicago, “Tinubu (2nd Respondent herein) stated that his address was 7504 South Stewart, Chicago, Illinois.”

It is submitted that one of the provisions of the law the court held was violated was 18 USC $ 1956, which outlaws money laundering. In GABRIEL DAUDU v FEDERAL REPUBLIC OF NIGERIA (2018) LPELR-43637 (SC), it was held: “Money laundering is a global scourge that affects countries worldwide, Nigeria not being an exception. It has been described as the washing of illegitimate money in a bid to make it appear clean or legitimate. It involves the process of transforming the proceeds of crime into ostensibly legitimate money or other assets.”

This Honourable Court in several other cases including ORJI UZOR KALU v FEDERAL REPUBLIC OF NIGERIA & ORS (2012) LPELR-9287 (CA), rightly took a swipe against money laundering, and adopted with approval the definition of the phrase in the book “MONEY LAUNDERING”, Butterworths Lexis-Nexis 2003 at page 3 paragraph 1.3, “varied means used by criminals to conceal the origin of their activities. The term “laundering” is used because these techniques are intended to turn “dirty” money into “clean” money, but laundering is not confined to cash.” Per EKO, JCA

In OKEWU v FRN (2023) 9 NWLR (Pt 1305) 327 at 362 paras C-D, the Court equally upheld that narcotic trafficking and/or dealing in narcotic drugs are prohibited by law.

It is important to submit that in ABACHA v FRN (2014) 6 NWLR (Pt 1402) 43 at 9, it was held that the word “forfeiture” means – “the divestiture of property without compensation. The loss of a right, privilege, or property because of a crime, breach of obligation, or neglect of duty”. It follows that “title in those assets and properties forfeited is instantaneously transferred to another, such as the government”. See Black’s Law Dictionary, Ninth Edition Page 722.”

My Noble Lords, the provision of Section 137 (1) (d) of the 1999 Constitution, is clear, explicit, unambiguous and clearly provides as follows: “A person shall not be qualified for election to the office of President if:

(d) He is under a sentence of death imposed by any competent court of law or tribunal in Nigeria OR a sentence of imprisonment or fine for any offence involving dishonesty or fraud (by whatsoever name called) or for any other offence imposed on him by any court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal; or”. (Emphasis supplied).

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, as such, 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 dishonest of fraud (by whatever name called) of any offence imposed on him by any Court or Tribunal. It is submitted that the Order of Forfeiture made against the 2nd Respondent by the US Court as reproduced above, constitutes a fine, and it is in respect of an offence involving dishonest or fraud by a Court.

With due respect, the submissions on pages 22-25 of the Written Address are incorrect and do not reflect the actual position of the law. It submitted that the misconception of the 2nd and Yd Respondents to the effect that a conviction must exist before a person will be disqualified from contesting for the office of the President, and which said misconception sterns from their unfortunate, albeit, misguided reliance on Section 137 (1) (e) of the 1999 Constitution. The Petitioners case is not based on Section 137 (1) (e), but rather on the provisions of Section 137 (1) (d) of the 1999 Constitution.

The 2nd and 3rd Respondents further attempt to discredit the evidence of PWI, by stating that he visited the United States once in 2003 is of no moment. Exhibit PA5 is documentary evidence which is certified, sealed, notarized and authenticated by the United States Court which issued it.

Exhibit PA5 fully complied with the provision of Section 106 (h) (i) of the evidence Act 2011, and it is in conformity with the authoritative pronouncement of this Honourable Court in MV DELOS v. OCEAN STEAMSHIP (NIG.) LTD. (2004) 17 NWLR (Pt. 901) 88 at 108– 109H-B (CA), this Court interpreted a similar provision and held that “a party who intends to rely on the judgment of a Foreign Court must comply with either of two options, namely: as follows: (a) by sealing the judgment with the seal of the foreign court; or (b) by a copy certified by the legal keeper with a certificate or of a notary public or of a consul or diplomatic agent stating that the copy is duly certified by the officer.” That is all the law requires, My Lords.

In MVD DELOS supra, the court further held on pages 108-109 that, “under the Nigerian Evidence Act, if the foreign judgment (Exhibit FA3) (but in the instant Petition is Exhibit PA5) had been sealed with the seal of the New York Court or had been certified by it, it would have been admissible in evidence.” In this case, the US Court proceedings tendered have been so sealed/certified; hence they are admissible in evidence.

In the instant case, therefore, Your Lordships are urged to uphold that the Exhibit PA5 tendered in this Petition is sealed and certified and there by admissible. It is instructive to also submit that in MVD DELOS supra, the Court went further to hold that a certified copy of foreign Judgment such as Exhibit PA5 is capable of operating as estoppel per rem judicatem once pleaded and tendered in evidence. We urge Your Lordships to disregard the argument of the 2nd and 3rd Respondents to the effect that Exhibit PA5 has not been registered in Nigeria, as according to them, such registration is required by the provisions of Section 3 of the Reciprocal Enforcement of Foreign Judgments Ordinance and Foreign Judgment (Reciprocal Enforcement) Act. Respectfully, Exhibit PA5 is neither a Money Judgment nor are the Petitioners by this proceeding, seeking to enforce any Money Judgment against the 2nd Respondent, nor is this Petition intended “for the recovery of a sum payable under a foreign judgment”.

Accordingly, Section 3 of the Reciprocal Enforcement of Foreign Judgments Ordinance and Foreign Judgment (Reciprocal Enforcement) Act, heavily relied on by the 2nd and 3rd Respondent are completely inapplicable to the instant Petition.

The 2nd and 3rd Respondents have also placed reliance on Article 54(1)(C) of the United Nations Convention Against Corruption, which talks merely of Member-States providing mutual legal assistance concerning property acquired through or involved in the commission of an offence established “in accordance with this Convention.” The question is whether Exhibit PAS, tendered by the Petitioners here, has anything to do with mutual assistance. Indeed, the headnote of Article 54 is this: Article 54. The mechanism for recovery of property through international cooperation in confiscation.

With very great respect, the above Article 54 of United Nations Convention Against Corruption is very irrelevant in this Petition. Respectfully, My Noble Lords, the cardinal question is whether a civil forfeiture under US Law as ordered in Exhibit PA5, can be equated to a fine as used in Section 137 (1) (d) of the 1999 Constitution. The answer, on settled case law in the US and legal literature is in the affirmative.

In the well-known case of AUSTIN v. UNITED STATES, 509 U.S. 602 (1993), the US Supreme Court unanimously held that civil forfeiture ordered in an in-rem civil action is a fine and is a punishment regardless that it did follow from criminal conviction. The Court relied on several authorities and held, among other things, that “forfeit” is the word Congress used for fine… Dictionaries of the time confirm that “fine” was understood to include “forfeiture” and vice versa.

In the recent case of Timbs vs. Indiana, Appeal No. 17-1091, decided by the US Supreme Court on 20/2/2019, the State of Indiana seized Timb’s Land Rover SUV. It had filed civil forfeiture proceedings, claiming that the SUV had been used to transport heroin. The question before the US Supreme Court was whether the cost of the vehicle vis­ a-vis the fine that would be imposed upon Timb’s conviction violated the US Eight Amendment’s Excessive Clause provision of the US Constitution. Inevitably, this amounted to equating civil forfeiture to a fine; the US Supreme Court said this in express terms. Justice Ginsburg, who delivered the lead opinion of that court (to which there was no single dissent), in quashing the civil forfeiture as being excessive and therefore unconstitutional, held inter alia as follows:

“For a good reason, the protection against fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts’ critics learned several centuries ago. See Browning-Ferris, 492 US, at 267. Even absent a political motive, fines may be employed “in a measure out of accord with the penal goals of retribution and deterrence,” for “fines are a source of revenue,” while other forms of punishment “cost a State money.” Harmelin v. Michigan, 501 US 957, n. 9 (1991) (opinion of Scalia, J) (“it makes sense to scrutinise governmental action more closely when the State stands to benefit”). This concern is scarcely hypothetical. See Brief for American Civil Liberties Union et al. as Amici Curie 7 (“Perhaps because they are politically easier to impose than generally applicable taxes, state and local governments nationwide increasingly depend heavily on fines and fees as a source of general revenue.”).

In short, the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming. Protection against excessive punitive economic sanctions secured by the Clause is, to repeat, both ”fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition. McDonald, 561 US, at 767 (internal quotation marks omitted; Emphasis deleted)… In Austin v. United States, 509 U.S. 602 (1993), however, this court held that civil in rem forfeitures fall within the Clause’s protection when they are at least partially punitive. Austin arose in the federal context.

But when a Bill of Rights protection is incorporated, the protection applies “identically to both the Federal Government and the States.” McDonald, 561 U. S., at 766, n. 14. Accordingly, to prevail, Indiana must persuade us either to overrule our decision in Austin or to hold that, in light of Austin, the Excessive Fines Clause is not incorporated because the Clause’s application to civil in rem forfeitures is neither fimdamental nor deeply rooted. The first argument is not properly before us, and the second misapprehends the nature of our incorporation inquiry.

A civil forfeiture in the US amounts to a ‘fine’ or a ‘punitive economic sanction’, and it is also “at least partially punitive” against the persons whose property is affected. Why did Timb challenge the forfeiture proceedings if he was not to be personally affected? Can it be honestly argued that the 2nd Respondent herein did not suffer economic sanction when he forfeited 460,000 USD to the US Government?

It is submitted that, the decision of the US Supreme Court above, ranks superior to the evidence called by the Respondents and the text written by TS Greenburg et al, entitled A Good Practice Guide for Non-Conviction Based Asset Forfeiture (World Bank 2009) 13, cited by the 2nd and 3rd Respondents on pages 24-25 of their Final Written Address.

Respectfully, My Lords, under the Nigerian law, the word “fine” used in Section 137 (1) (d) of the 1999 Constitution as amended, also contemplates an Order of Forfeiture made against the 2nd Respondent.

Under the Administration of Criminal Justice Act 2015 (ACJA), the Interpretation Section defines “fine” as “includes any pecuniary forfeiture or pecuniary compensation payable under this act. Penalty includes any pecuniary fine, cost, forfeiture or compensation recoverable under an order.

In AG BENDEL STATE v. AGBOFODOH (1999) 2NWLR (Pt. 592) 476, the Supreme
Court held inter alia: “Forfeiture is an action of forfeiting something or being forfeited. It is a penalty, a forfeit, a fine or mulct. It is synonymous with fine, penalty, damage, confiscation, sequestration or amercement.” See also the Judgment of Ogwuegbu JSC at pages 501 to 502 and Iguh JSC at page 507.

A similar interpretation/definition of the word forfeiture was adopted by this Honourable Court in BASHIR v. FRN (2016) LPELR-40252 (CA) 2829 para C. In the celebrated case of ABACHA v. FRN (2014) LPELR-2201 (SC) pages 46-47, paras F-B, Ariwoola JSC (now CJN), referred to other authorities on the point and rightly concluded that “these definitions leave no doubt that forfeiture is a sanction, a fine by the Court. It is penal and criminal in nature. (Emphasis ours).

It is submitted that by the express meaning and intendment of Section 137 (1) (d) of the 1999 Constitution, a person who, even though not convicted, have forfeited property on account of criminal conduct should not aspire to or be allowed to occupy the exalted office of President of Nigeria. That is why the word “or” is used twice in section 137(1)(d) of the Constitution, meaning it carries a disjunctive meaning – to separate persons convicted from persons who, even though not sentenced, are affected by an order of a fine imposed by a Court – like the 2nd Respondent in this Petition. In other words, the affected person (in this case, the 2nd Respondent) needed not have been convicted before the provisions of that paragraph would come into effect.

The United States District Court, No1ihem District of Illinois, which made the Order of Fine against the 2nd Respondent, comes within the category of the term ‘any court’ provided for in section 137 (1) (d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Within the tenor of the section, where it was intended to apply to Nigerian courts, that was provided for expressly before it proceeded with the disjunctive term by operation of the word ‘or’ to after that provide for the applicability of any court. The Constitution does not define the term ‘court’ to justify a restrictive interpretation of the term to the courts provided for under the Constitution of the Federal Republic 1999 (as amended). Therefore, we submit that the reasonable conclusion is that courts are not limited to Nigeria, and section 137 (1) (d) intends to apply to any courts, whether Nigerian or otherwise.

We submit further that the provisions of section 137 (1) (d) merely require that the candidate is under the fine imposed. In the instant case, the 2nd Respondent’s admission to ownership of the bank account brings him under the fine imposed. The action being one in Rem against funds held in his personal account is a lien for which the resulting liability is strictly personal. The contention that the fine was imposed against the bank account alone is puerile and amounts to a moot distinction without a difference. This court settled the location where liability lies in action in Rem, in AW (NIG) LTD v SUPERMARITIME (NIG) (2005) 6 NWLR (Pt 922) page 563 at 587 – 588, paras. H-A (CA), when it held that:

“12. On Foundation of action in Rem: The Foundation of an action in Rem is the lien resulting from the personal liability of the owner of the res.”

Having regard to the foregoing definitions of “money laundering”, there is no doubt that its nature and character clearly involve dishonesty on the part of the persons who engaged in money laundering, as in the case of the 2nd Respondent.

In defence, the 2nd-3rd Respondents relied on RW2. A witness that is already discredited for disowning on oath a part of the document he tendered in evidence. To defend the issue of the disqualification of the 2nd Respondent to have contested the presidential election, the RW2 testified as a purported expert in American law.

Under cross-examination by the 4th Respondent, he stated That he is “an Attorney in the US”. He tendered American Bar Association (New York Bar Membership) card as Exhibit RA28. Under cross-examination on behalf of the Petitioners, he admitted that he did not tender “any licence to Practice Law in the State of New York”. He claimed that he has “a licence to practice Federal Law across the United States.” With respect, that is a fictional claim.

Under cross-examination on behalf the Petitioners, the RWl stated that: “The American Court relied on American Law Section 981 dealing with civil forfeiture.” This statement is embarrassing and betrayed his claim of being knowledgeable in American Law. His claim is grossly untrue, ludicrous, and deeply misconceived. He further stated that the USA judgment “is not money judgment”. This contradicts the claim in his deposition that the judgment is registrable in Nigeria pursuant to Foreign Judgments (Reciprocal Enforcement) Act! Only money judgments are registrable in Nigeria. 

It is therefore, submitted that, the 2nd Respondent against whom an Order of Forfeiture was made in Exhibit PA5, which said Order of Forfeiture, has been shown to be the same as a fine, is within the meaning and intendment of Section 137 (1) (d) of the 1999 Constitution as amended, not qualified to contest the Presidential election held on 25th February 2023.

Your Lordships, are on this ground urged to uphold the Petitioners claims, seeking for the disqualification of the 2nd Respondent.

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