The National Drug Law Enforcement Agency (NDLEA) has filed a preliminary objection to a lawsuit instituted by the Peoples Democratic Party, PDP and a chieftain of the opposition party, Senator Dino Melaye against President-Elect, Asiwaju Bola Ahmed Tinubu, over his alleged drug case in the United States.
The PDP and Melaye had filed for an order of mandamus to compel the NDLEA to arrest and prosecute Tinubu over an alleged forfeiture of funds relating to narcotics trafficking in the US.
However, the NDLEA in the preliminary objection filed by Joseph Sunday, its Director of Prosecution, asked for the lawsuit to be struck out because the court lacks the jurisdiction to entertain it and also because the application by the PDP and Melaye is "incompetent".
Some of the reasons for objection listed by the NDLEA include both the PDP and Melaye "not having a locus standi, and not possessing an interest peculiar to them and above the interests of all other Nigerians". The anti-drug agency claimed that the only underlying specific interest of the 1st Applicant becomes political in nature" as an investigation and prosecution of Tinubu is only targeted at removing him as a bonafide candidate in the February 25, 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 coloration or matters aimed at getting direct or indirect political goals.
Also pointing out 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 NDLEA claimed that "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."
The NDLEA also attached a sworn affidavit in which a litigation officer attached to its Directorate of Prosecution and Legal Services, Chia Cosmas Depunn stated 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. Depunn said 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 also said the name of Tinubu has also not featured in the radar and database of the Agency as a person arrested, investigated, or prosecuted in connection with drug or other related offences.
Depunn, who noted that the NDLEA relies on intelligence and information from foreign and domestic partners as well as public-spirited individuals, also stated that the 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.
The litigation officer in the 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".
NDLEA defends Tinubu in drug case, says he was never prosecuted in US
"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."
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