Respected Lawyer, Barr. Doueyi Dominic Fiderikumo, has thrown more light on some paragraphs of the petition filed by the President candidate of the Labour Party, Mr. Peter Obi, against the eventual winner and candidate of the All Progressives Congress, Asiwaju Bola Ahmed Tinubu.
In a chat with our correspondent, Barr. Fiderikumo shared his thoughts on Paragraphs 28 and 29 of Peter Obi’s petition to the tribunal.
Paragraph 28 of the Petition pleads that the 2nd Respondent was fined the sum of $460k for an offence involving dishonesty, narcotic trafficking by a US Court and was thus not qualified to contest the election to the office of President, FRN. It also pleads the parties to the case in the US Court. Notice that the use of the words Plaintiff and Defendants and more particularly the fact that the parties are the US and funds held by Banks in the name of Bola Tinubu. The essence of the action is not in personam, meaning not against a person, but in rem, meaning against a thing. In this case, the money held in the designated banks in the name of Bola Tinubu.
In support of the averment in paragraph 28, paragraph 29 pleads that the above sum held by the designated bank in the name of Bola Tinubu be forfeited to the government of the U.S because the money represents proceedings of narcotic trafficking or was involved in financial transaction in violation of 18 USC 1956 and 1957. USC stands for United States Code. For the avoidance of doubt USC 1956 and 1957 are US legislations on money laundering. Please Google this point to independently confirm. 1 Thessalonians 5:21 KJV. Prove all things; hold fast that which is good.
Arising from No. 2, the point to note is that the basis of or reason for the forfeiture of the funds mentioned in the Order or Decree of the US Court is not clear. It says for narcotic trafficking or financial transactions in violation of the said legislations. The Order or Decree as can be garnered from paragraph 29 does not unequivocally say it was for narcotic trafficking as widely argued.
If, you are not objective or perhaps you do not like the 2nd Respondent or you have a political reason to be jaundice, you can close your eyes to one of the possible reasons for the forfeiture and hold that the reason for the forfeiture of the above sum is drug trafficking. It will be your constitutional right to do so, whether or not you are right. After all thought is free.
If, on the flip side you are biased in favour of the 2nd Respondent or you like him or cannot be objective regarding him or for some political reasons in favour of the 2nd Respondent, the sum forfeited is not for narcotic trafficking, you can go for the fact that the forfeiture is for some unspecified (not specified in the Decree reproduced in paragraph 29 of the Petition) financial transactions in violation of the US statues mentioned above. Here again, it will be your constitutional right to do so, whether or not you are right. After all thought is free.
Now, the crucial questions to ask are: (a) did the Order or Decree of the US Court reproduced in paragraph 29 of the Petition affirmatively say that the 2nd Respondent was fined for an offence involving dishonesty such as Narcotic trafficking as alleged in paragraph 28 of the self-same Petition. (b) Does the Decree or Order of the US Court reproduced in paragraph 29 of the Petition say and one should not assume, that the 2nd Respondent was a party to the proceedings, was charged, tried and convicted for the offence of narcotic trafficking or financial transactions in violation of 18 USC 1956 and 1957 and upon such conviction was sentenced to the payment of fine to the tune of $460k dollars or was liable to forfeit the said sum of money? (c) as you express public opinions on this issue, have you bothered to consider the statutes mentioned above that is 18 USC 1956 and 1957, and the complaint that was made leading to the forfeiture order stated in paragraph 29 of the Petition? (d) what are the circumstances an order for forfeiture of property or money or otherwise can be made and is forfeiture the same as fine as alleged in paragraph 28 of the Petition?
In the US, as in Nigeria, forfeiture of property can arise after a successful criminal prosecution or vide a civil, better put, a quasi-criminal proceedings that target the property and not the person who allegedly owns the property subject of the proceedings. Quasi means partly. As you will find hereunder, the standard of proof in forfeiture proceedings is not beyond a reasonable doubt because its not a criminal trial, but it has a civil standard of proof on a balance of probability. In fact, in forfeiture proceedings where the res (monies, lands, buildings, shares etc) are seized by way of an ex-parte application, a person who is interest in the subject of the proceedings is expected to come forth and explain how he got the property (the subject of the proceedings).
If you think that the last point is an empty submission, I will urge you to look at Section 17 of the Advance Fee Fraud and other Related Offences Act. “This therefore means that the burden and standard of proof in proceedings under Section 17 which is not based on conviction is totally different. Upon liability, under Section 17, the focus is towards the property and not the individual. In legal parlance, the action for forfeiture under Section 17 is in rem and not in personam. The implication of this is that the argument on the innocence of an Appellant until proven guilty does not apply to proceedings under Section 17 as what is really on trial on forfeiture proceedings is the property and not the individual. See Patience Jonathan vs. FRN (supra). The learned silk, counsel to the Appellant conceded that proceedings under Section 17 of AFFRO Act is civil and not criminal, it therefore stands to reason that all his argument on the presumption of innocence of the Appellant under criminal law until he is proven guilty will not hold water at all. This is a different kind of proceedings from a criminal proceeding.
There is a difference in the applicable rules and sometime procedures between civil and criminal proceedings. That a forfeiture procedure under the AFFRO Act is civil is settled and therefore the law and procedure governing criminal procedure will not apply to it. Apart from the fact that the res in both the criminal action and the forfeiture order are different, it is also clear that the consequences of both actions are different. At the risk of sounding verbose but for emphasis sake I must say again that the proceedings under Section 17 is in rem meaning what is really standing trial is the property and not the individual, sounding more specific, the order under Section 17 does not affect the individual directly but rather the property to be forfeited. As against this position, the criminal action has nothing to do with the monies but rather the Appellant. If the Appellant is found guilty in the criminal trial, he will serve jail term as the focus in the criminal action is the Appellant while the focus in the proceedings under Section 17 is the property”. PER TOBI, J.C.A in ADIGUN V. EFCC & ORS (2020) LPELR-52302(CA)(PP. 31-40 PARAS. C) See further the Supreme Court case of JONATHAN V. FRN (2019) LPELR-46944(SC).
For forfeiture after conviction see Part 35 particularly Sections 333 to 346 of the Administration of Criminal Justice Act, 2015 for one example.
Forfeiture proceeding which is what happened in the Decree or Order of the US Court reproduced in paragraph 29 of the Petition is not a criminal case involving a sentence of imprisonment or fine after trial on the merit. It is an action in rem. The sole focus is the recovery of or the judicial confiscation of a property that is suspected to be proceeds of crime or wealth that is irreconcilable with one’s known legitimate means of income. In the UK, there is what is known as Unexplained Wealth Office. (UWO).
In considering whether the Decree of the US Court as reproduced in paragraph 29 of the Petition falls within or rises to the level of or is contemplated by Section 137(d)(e) of the Constitution of the Federal Republic of Nigeria 1999 as amended, and for which the 2nd Respondent ought to be disqualified, it will be lame and I dare say disingenuous to come to such conclusion if you do not take the time and pains to consider 18 USC 1956 and 1957 mentioned in paragraph 29 of the Petition and more importantly the proceedings, documents that were filed leading upon to said Order. Half knowledge is evil and it reduces an otherwise reasonable man to a fanatic. Please check the following link for 18 USC 1956 and 1957:
Section 137(1)(d)(e) of the Constitution provides that 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 whatever 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 (e) within a period of less than ten years before the date of the election to the office of President he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct.
Section 137(1)(d) of the Constitution requires a sentence of imprisonment or fine. Neither of these can come without a criminal trial and conviction. Did you see a criminal trial and conviction upon which there was a fine in the Decree or Order of the US Court reproduced in paragraph 29 of the Petition under reference? I do not think so. How do you reasonably expect a man to be fined for the sum of $460k as alleged in paragraph 28 of the Petition without a trial and conviction for an offence or offences and what is worse for one who was not even a party to the case under reference. Section 137(1)(e) of the Constitution requires a conviction – a criminal conviction.