The Peoples Democratic Party, PDP, and a leader of the opposition party, Senator Dino Melaye, filed a lawsuit seeking an order of mandamus compelling the anti-narcotics agency to arrest and prosecute the President-Elect, Asiwaju Bola Ahmed Tinubu, over alleged forfeiture of some funds in his bank accounts over 20 years ago in the United States. The National Drug Law Enforcement Agency, or NDLEA, has filed a preliminary objection to the lawsuit.
The NDLEA claimed that the application by the PDP, which is the first applicant and Melaye is the second, is incompetent and that the court lacks jurisdiction to entertain it and as such, should be struck out in its notice of preliminary objection signed and filed at the Federal High Court in Abuja on Wednesday, April 26, 2023.
The NDLEA stated that the PDP and Dino Melaye “do not have a locus standi, they do not possess an interest peculiar to them and above the interests of all other Nigerians, the only underlying specific interest of the 1st Applicant then becomes political in nature,” and that Tinubu’s investigation and prosecution were intended to disqualify him from running as a legitimate candidate in the February 25th, 2023 presidential election.
Orders of mandamus, according to the Agency, “shall only be requested in good faith and should not result in an indirect or underlying result. This Honourable Court is prohibited by the Doctrine of Judicial Self-Restraint from looking into cases that have a political bent or are intended to achieve direct or indirect political objectives.
Although the Northern District of Illinois Eastern Division proceeding in the US served as the basis for the PDP application, the judgment in that proceeding was given “with prejudice,” and it was further stated that “the said proceedings and judgment have no judicial value” and as a result, “the supposed cause of action of this suit as constituted is baseless and legally unsustainable.”
In an affidavit in support of the Agency’s preliminary objection, Chia Cosmas Depunn, a litigation officer assigned to its Directorate of Prosecution and Legal Services, stated that the NDLEA has a positive relationship with the government of the United States of America, going by the name of Asiwajuj. As an independent government agency tasked with the duty to investigate, arrest, and prosecute individuals involved in drug trafficking and other related offenses in Nigeria.
He said that Tinubu’s name did not appear on the Agency’s radar or database as a suspect in any arrests, inquiries, or prosecutions relating to drug or other related offenses.
It should be noted that even though the NDLEA relies on intelligence and information from domestic and international partners as well as public-spirited individuals, neither the PDP nor Melaye have ever lodged or forwarded any complaint, information, or intelligence on Tinubu or any other person in Nigeria or abroad related to illicit activities on drug matters since the Agency’s establishment in 1990. This will continue until January 17, 2023.
The litigation officer in the affidavit also presented the following arguments to support the Agency’s position:
“That this lawsuit as it is now structured denies the Court jurisdiction.
“That the First Applicant lacks locus standing to bring this lawsuit because it lacks interests peculiar to it and superior to those of all other Nigerians.
“That the 6th Respondent’s removal as a candidate for a competing political party is the only odd interest of the 1st Applicant.
“That the first applicant’s interests are political.
That the third respondent is a separate government agency without any political inclinations or ties.that it is the Court’s responsibility to shield the third respondent from political squabbles.
“That the lawsuit is unfounded, frivolous, and initiated in bad faith with the express purpose of attaining a political goal through the Court’s process.
“That the case’s facts and circumstances call for the Court to exercise judicial restraint.
“That the 2nd Applicant is not a member of the management committee, executive board, or officers of the 1st Applicant.
That the second applicant lacks locus standing to bring this lawsuit since he has no interests that are unique to him and that are greater than those of all other Nigerians.
“That a Mandamus Order is an appropriate remedy.
“That the Order of Mandamus must be used honestly to advance the common welfare.
That an indirect or underlying outcome from the Order of Mandamus should not occur.
“He has reviewed the accompanying judicial proceedings and made the following observations:
That some accounts held in the name of the sixth respondent were the subject of a civil forfeiture process in rem brought by the United States of America as the plaintiff.
“That the purpose of the lawsuit was to forfeit the money in the aforementioned accounts, or a portion of it, as the profits of illegal narcotics trafficking.
That the 6th Respondent’s person was not the target of the lawsuit.that there was no accusation or indictment in the lawsuit.
“That the balance of probability is the basis for the evidence requirement in civil forfeiture.
“That proof beyond a reasonable doubt is the standard of proof in a criminal indictment, charges, and proceedings.” compared to civil procedure, the burden of proof in criminal procedure is much higher.
That the orders made “with prejudice” by Magistrate Judge John A. Nordberg of the United States District Court for the District of Illinois in Suit No. 9C4483 regarding the release of the funds held by Citi Bank N.A. and Citi Bank International, which funds were the second and third defendants in the lawsuit, were made.
“That any future proceedings relating to the Account are barred by the District Court’s orders in the Citibank Accounts.
“That only the Orders about the money held by Heritage Bank, where a forfeiture of $460,000.00 was made, be made simpliciter and without a caveat.
That “the stipulation and Compromise Settlement of Claims to the Funds Held by Heritage Bank and Citibank” previously filed by the parties in court was incorporated into the orders made by the US District Court of Illinois.
“That the forfeiture and release of monies as specified in the Settlement Agreement concerns were resolved by the decision of the US District Court of Illinois.
“That the judgment of the District Court of Illinois, which has resolved the subject, is the basis for the cause of action for a mandamus directing the third respondent to investigate and prosecute the sixth respondent.
“That the Applicants’ cause of action is barred and without merit,” and “that it is in the interests of justice to dismiss this suit with substantial cost.”
