Details of Peter Obi/LP’s appeal at Supreme Court against PEPC judgment [pt. 4]
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On 9th September, 2023, Mr. Peter Gregory Obi and his Labour Party (LP) appealed against the judgment of the Presidential Election Petition Court (PEPC) at the Supreme Court containing 51 grounds of appeal.
The appeal was consequent upon the PEPC Judgment delivered on the 6th day of September 2023, which dismissed the Petition filed by Peter Obi/Labour Party “against the unlawful return and declaration of Bola Ahmed Tinubu as the winner of the presidential election held on 25th February, 2023.
The appeal is predicated on the Notice of Appeal filed in the Supreme Court of Nigeria holden at Abuja with file number SC/CV/937/2023 against petition number: CA/PEPC/03/2023 with the Independent National Electoral Commission (INEC), Senator Bola Ahmed Tinubu, Senator Shettima Kashim and the All Progressives Congress (APC) as Respondents.
In this segment tagged “Legal Arguments”, Peter Obi/Labour Party insisted that Tinubu was fined the sum of $460,000.00 for an offence involving dishonesty, namely narcotics trafficking imposed by the United States District Court, hence cannot qualify for the presidential election ab initio.
In their “Arguments on Issue 4”, Peter Obi/Labour Party stated:
One of the grounds upon which the Appellants challenged the qualification of the 2nd Respondent to contest the Presidential Election in paragraphs 28-32 of the Petition (at pages 9-11, vol. 1 of the ROA) is that “he was fined the sum of $460,000.00 (four hundred and sixty thousand United States Dollars) for an offence involving dishonesty, namely narcotics trafficking imposed by die United States District Court. Northern District of Illinois, Eastern Division. in Case No: 93C 4483-: and therefore, disqualified by Section 137(1)(d) of the 1999 Constitution (as amended) which provides in clear and unambiguous words 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 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 tribunate”. (Emphasis supplied).
The proceedings and decision/order of the US District Court in this connection was tendered and rightly admitted in evidence by the Court below as Exhibit PM. In its Judgment, the Court below referred to the meaning of an “offence” in the Black’s Law Dictionary and rightly held that by the decision of the Supreme Court in UMAR v. STATE (2018) LPELR – 23190 (SC) “an offence is an act which is clearly prohibited by Law which may be a criminal or civil offence.” (See pages 3644 – 3646, vol. 6 of the Record). However, relying on some irrelevant authorities, it concluded that from the legal definitions and judicial authorities, “it is clear that “the sentence of imprisonment or fine for any offence involving dishonesty or fraud” envisaged in Section 137(I)(d) of the Constitution is one imposed upon a criminal trial and conviction. In the instant case, the Petitioners have failed to show evidence that the 2nd Respondent was indicted or charged, arraigned, tried and convicted and was sentenced to any term of imprisonment or fine for any particular offence. ” (Sec page 3650, vol. 6 of the ROA). With due respect, the decision of the Court below on this aspect is perverse and ought to be set aside. This is because, in the first place, the parties are ad idem on Exhibit PAS, being the Order of Forfeiture certified, sealed, notarized and authenticated by the United States District Court. There is no dispute that the 2nd Respondent forfeited the sum of $460,000.00 US Dollars for narcotics trafficking and or money laundering by an American Court. The Appellants had tendered Exh. PA5 as “Settlement Order of Claims to Funds held by Heritage Bank and Citibank.” In this case, the 2nd Respondent named in person (Bola Tinubu) and others claimed ownership of the sums in the accounts. Clearly, the civil forfeiture proceedings and orders made in Exhibit PA5, were on proceeds of a criminal activity, by the 2nd Respondent.
Remarkably, as shown above, the Court below rightly found that the Supreme Court in UMAR v THE STATE (supra) held that “an offence is an act which is clearly prohibited by law and which may be a crime or a civil offence.” Clearly, therefore, the word “or” in Section 137(I)(d) of the Constitution separates the opening phrase “he is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment” from the ward “fine,” the draftsman taking into account that “fine” could arise, as found by the lower Court which relied on the decision of the Supreme Court in UMAR v. STATE (supra) from either a criminal or civil misconduct. The use of the word “or” in the above provision which bears a disjunctive meaning, in that it separates the provision in which it appears from the one following it. See Section 18(3) of the Interpretation Act, Cap. 123 I.FN 2004 and ABUBAKAR v. VAR’ ADUA (2008) 19 NWLR (Pt. 1120) I. It happened that the Court below referenced the Supreme Court decision in UMAR’S case which slated that an offence may be a crime or a civil offence; yet, the Court summersaulted and later held that the Section relates to sentence of death, or sentence of imprisonment or fine imposed as a result of criminal trial and conviction. We submit that the Court below was under obligation to be consistent in its judgment or ruling; and failure by the Court to abide by this rule has occasioned a miscarriage of justice against the Appellants. See PDP v. LAWAL (2023) 12 NWLR (Pt. 1898) 205 at 245 SC.
Contrary to the decision of the Court below, a Court Order Imposing a forfeiture of money for prohibited offence relating to drugs, is a sentence, as defined by Stroud’s Judicial Dictionary of Words and Phrases, 701 Edition, Volume 3 by Thompson, Sweet & Maxwell, 2006 at page 2494. We submit that neither the decision in ACTION CONGRESS v. INEC (2007) 12 NWLR (Pt. 10480 220 nor the cases of JONATHAN v. FRN (2019) 10 NWLR (Pt. 1681) 533 and others relied upon by the Court below does not support its decision. In the instant case, the line or civil forfeiture was imposed by the US District Court as contained in Exhibit MS and not an Administrative Panel of Inquiry, contrary to the decisions relied upon by the lower Court. Curiously, the Court below refined to abide by the earlier dictum in JONATHAN v. FRN (supra) that a, “civil forfeiture Is a unique remedy which does not require conviction or even a criminal charge against the owner.” Section 137(1 )(d) of the Constitution, commencing from the word “or fine,” contemplates a civil forfeiture order hinged on or targeted at illicit or fraudulent funds, which must per force be traced to a legal personality/existing human being, since such funds are not humans that can operate independently. It is important to reiterate that it was never the case of the Appellants at the Court below that the 2nd Respondent was arrested, charged and convicted by the US Court. Therefore, there was no basis for the Court to have set up a case different from the case of the Appellants. The duty of the Court was to consider the case before it as set up by the Appellants; and it surely had no business setting up for the Appellants a case different from the one they set up. See OJO-OSAGIE v. ADONRI (1994) LPF.LR-2386 (SC) at 19-20r.
Worse still, the Court below completely ignored to follow and abide by relevant and abundant case law submitted to it, both from the US Supreme Court and this Honourable Court, that imposition of a “fine” is not limited to a criminal conviction; as the word, in law, includes a civil forfeiture. 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 juke and is a punishment regardless that it did not flow 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”. In the more recent case of TIMBS vs. INDIANA, Appeal No. 17-1091, decided by the US Supreme Court on 20/2/2019, the Court relied on AUSTIN v. US (supra) and clarified thus: “Even absent a political motive fines may he 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… 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.” In A.G., BENDEL STATE v. AGBOFODOH (1999) 2 NWLR (Pt. 592) 476, this Honourable Court similarly held, inter alio, that: “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.” Sec also the Judgment of Ogwucgbu JSC at pages 501 to 502 and Iguh JSC at page 507 thereof. The Court below also ignored and refused to follow its previous decisions in BASH IR v. FRN (2016) LPELR-40252 (CA) 2829e which followed the above decision of the Supreme Court. So, too, the decision of this Apex Court in ABACHA v. FRN (2014) LPELR-2201 (SC) at 46-471-“, wherein Ariwoola JSC (now CJN) teemed 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.”
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Furthermore, the Court below was also wrong to find that the orders made in Exhibit PAS were not in personam against the 2nd Respondent. This is because the civil forfeiture proceedings and orders in Exhibit PAS, even though against funds in specified Bank Accounts in the US, were targeted at proceeds of a criminal activity, perpetrated by the 2’4 Respondent. The said proceedings were an action in personam because they were not targeted at illicit funds at large, but those funds traceable to the 2nd Respondent – a fact none of the Respondents denied before the Court below. In OYETOIA v. INEC (2023) 11 NWLR (Pt. 1894) 125 at 182c-D SC, this Honourable Court held inter alia that a judgment in person – “Usually creates a personal obligation as it determines the rights of parties inter se to, or in the subject-matter in dispute whether it be land or other corporeal property or liquidated or unliquidated demand….” In this case, the civil forfeiture was “liquidated” in nature; and since it was traceable to the 2nd Respondent, it was “in personam.” Granted that civil forfeitures are generally considered to be in rent, the Court below failed to consider the point that even it the Court below) had settled the location where liability lies in action in rem, in AW (NIG) LTD v SUPERMARITIME (NIG) (2005) 6 NWLR (Pt 922) 563 at 587-588′ (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.” The Court below also overlooked that the law attributes to a person in possession of property to be the owner of such property. In this case, there is an admission by the 2″5 Respondent of ownership of the funds in the bank account in issue, as shown in Exhibit PAS. (See the Schedule to the Exhibit at pages 2216- 2226, vol. 4 of the Record showing that the 21.4 Respondent herein filed processes in that case through a Counsel admitting ownership of the sum forfeited).
A recourse to the plain and ordinary definition of narcotics’ trafficking reveals that it is a dishonest or fraudulent act contemplated under Section 137(I)(d) of the 1999 Constitution (as amended), for the simple fact that it does not amount to hard work or a just earning, because it is nothing more than a criminal enterprise. The Oxford Advance Learner’s Dictionary, A. S. llomby, 8111 Edition, with Joanna Turnbull as Editor, published by Oxford University Press in 2015 at pages 418 and 720 defined ‘Dishonest’ to mean “Not honest; Opp honest”; and ‘Honest’ to mean “4 (of work or wages) earned or resulting from hard work.” What emerges from the foregoing is that the Court below failed to give a broad, liberal and purposive interpretation to Section 137(1)(d) of the 1999 Constitution (as amended) as laid down and enjoined by the Supreme Court in RASH/ v. KANO STATE (1980) 8 – II S.C. (Reprint) 85 at 96.
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