…Lists legal grounds why it can’t arrest, prosecute president-elect

The National Drug Law Enforcement Agency, NDLEA, has filed preliminary objection to a suit instituted by the Peoples Democratic Party, PDP and a chieftain of the opposition party, Senator Dino Melaye seeking an order of mandamus to compel 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 two decades ago in the United States.

In its notice of preliminary objection signed and filed at the Federal High Court in Abuja on Wednesday 26th April 2023 by its Director of Prosecution and Legal Services, Joseph Nbona Sunday, NDLEA submitted that the application by the PDP, which is the 1st applicant with Melaye as 2nd, is incompetent, adding that the court lacks the jurisdiction to entertain it and as such, should be struck out.

Listing its grounds for the objection, the NDLEA said both 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”, adding that the investigation and prosecution of Tinubu was targeted at removing him as a bona-fide candidate in the February 25th 2023 presidential election.

The Agency argued that “Order of mandamus is an equitable remedy and should only be applied for in good faith and should not produce an indirect or underlying result. The Doctrine of Judicial Self-restraint precludes this Honourable Court from delving into matters with political colouration or matters aimed at getting direct or indirect political goals.

While noting that the foundation of the PDP application was the proceeding of the US District Court of the Northern District of Illinois Eastern Division in the US, “the judgment in the said proceeding was given “with prejudice”, adding that “the said proceedings and judgment have no judicial value”, and as such “the supposed cause of action of this suit as constituted is baseless and legally unsustainable.”

In a sworn affidavit in support of the Agency’s preliminary objection, a litigation officer attached to its Directorate of Prosecution and Legal Services, Chia Cosmas Depunn said that as an independent agency of government saddled with the responsibility to investigate, arrest and prosecute persons involved in drug trafficking and other related offences in Nigeria, the NDLEA has a healthy relationship with the government of the United States of America, the name of Asiwaju Bola Ahmed Tinubu “by whatever acronyms or combination of names has never featured in the exchanges we had with the United States of America.”

He further claimed that the name of Tinubu has also not featured in the radar and data base of the Agency as a person arrested, investigated or prosecuted in connection with drug or other related offences.

While noting that though NDLEA relies on intelligence and information from foreign and domestic partners as well as public spirited individuals, both PDP and Melaye have never for once since the establishment of the Agency in 1990 made or forwarded any complaint, information and/or intelligence on Tinubu or any other person in Nigeria or outside the country relating to illicit activities on drug matters until 17th January 2023.

To further justify the position of the Agency, the litigation officer in the sworn affidavit also made the following submissions:

“That this suit as presently constituted does not confer the Court with jurisdiction.

“That the 1st Applicant does not have locus standi to institute this suit as it does not possess interest peculiar to it and above the interests of all other Nigerians.

“That the only peculiar interest of the 1st Applicant is to get rid of the 6th Respondent as a candidate of a rival political party.

“That the interest of the 1st Applicant is political in nature.

“That the 3rd Respondent is an independent Government Agency that has no political colouration or affiliation.

“That the Court has a duty to insulate the 3rd Respondent from political controversies.

“That the suit is baseless, frivolous and brought in bad faith with the sole aim of achieving a political objective using the instrumentality of the Court process.

“That the facts and circumstances of the case require the Court to apply the doctrine of judicial self-restraint.

“That the 2nd Applicant is not an officer or executive or management committee of the 1st Applicant.

“That the 2nd Applicant has no locus standi to institute this suit as he does not possess any interest peculiar to him and above the interests of all other Nigerians

“That an Order of Mandamus is an equitable remedy.

“That the Order of Mandamus must be applied in good faith to promote public interest.

“That the Order of Mandamus should not produce an indirect or underlying result.

“That he has gone through the supporting judicial proceedings and noted as follows:

“That the matter was a civil forfeiture proceeding in rem brought by the United States of America as plaintiff against certain accounts held in the name of the 6th Respondent.

“That the object of the suit was to forfeit the funds or a certain part thereof in the said accounts as proceeds of illicit traffic in drugs.

“That the suit was not taken out against the person of the 6th Respondent.

“That the suit was not a criminal indictment or charge.

“That the standard of proof in civil forfeiture is based on the balance of probabilities.

“That the standard of proof in criminal indictment, charges and proceedings is proof beyond reasonable doubt.

“That the burden of proof in criminal procedure is much higher than that of civil procedure.

“That the Orders of the United States District Court of Illinois delivered by Magistrate Judge John A Nordberg in Suit No. 9C4483 relating to the release of the funds held in Citi Bank N.A. and Citi Bank International which funds were the 2nd and 3rd Defendants in the suit were made “with prejudice”.

“That the Orders of the District Court in the Citibank Accounts places a barrier on any further proceedings relating to the Account.

“That only the Orders relating to the funds held in Heritage Bank where the sum of $460, 000.00 was forfeited was made simpliciter and without a caveat.

“That the Orders made by the US District Court of Illinois were made to incorporate “the stipulation and Compromise Settlement of Claims to the Funds Held by Heritage Bank and Citibank” earlier filed by the parties in Court.

“That the judgment of the US District Court of Illinois put to an end to issues relating to the forfeiture and release of funds as contained in the Settlement Agreement.

“That the cause of action for mandamus requesting the 3rd Respondent to investigate and prosecute the 6th Respondent is founded on the judgment of the District Court of Illinois which has put the matter to rest.

“That the cause of action of the Applicants is dead and legally unsustainable.

“That it is in the interest of justice to dismiss this suit with substantial cost.”