"I am very disturbed by the fact that you are now claiming ignorance of the fact that the funds belong to Nigeria," reads a letter by Nigeria's lawyer to his US counterpart.
Nigeria is engaging in a complicated legal battle to recover $8.6 million in arms funds trapped in the United States by a forfeiture order since 2015.
The US government is resisting the legal moves by Nigeria to reclaim the money. Its legal strategy has rattled Nigeria's lawyers, compounding a legal process they thought would be a smooth sail.
Nigeria paid the money in question through intermediaries to an American arm brokering firm, Dolarian Capital Inc (DCI) in 2014 for the purchase of arms, in the wake of the April 2014 abduction of 276 schoolgirls in Chibok, Borno State, north-east Nigeria.
However, the deal ran into a roadblock in August 2014 when the US government denied DCI's application for approval to purchase and export the arms to Nigeria.
The US government seized the money it described as the proceeds of a violation of its Arms Export Control Act, on the basis that DCI did not have the licence to engage in the sale, export, import and brokering of military products.
At the instance of the US government, the US District Court in Eastern California issued warrants for the seizure of the money held in different bank accounts on 2 February 2015.
The government also filed a criminal case against the owner of DCI, Ara Dolarian, charging him with violation of the Arms Export Control Act for engaging in arms brokering activities without a licence.
In January 2020, Mr Dolarian pleaded guilty to the count and was jailed for 14 months on 2 March 2023. The judge ordered him to serve his sentence at Lompoc prison, a low-security federal correctional institution in California.
While the US government was pressing charges against Mr Dolarian, it was also pursuing a court order for the forfeiture of the already seized funds provided by Nigeria.
In June 2015, the US government applied to the US district court in Eastern California for an order of forfeiture of the funds. The court, on 29 January 2020, granted the request for a preliminary order of forfeiture.
Nigeria has now applied to the US court to modify the preliminary order of forfeiture to take back the money.
While the US government has yet to categorically deny Nigeria's entitlement to the money, it continues to mount subtle resistance, confounding Nigeria's legal process of reclaiming it.
Nigeria's legal efforts
Nigeria began to take steps to recover the money in 2021 when it hired a US-based lawyer, Jovi Usude, to handle the legal process.
Key correspondences Mr Usude sent to the US government's lawyers after Nigeria hired him are now part of court filings in the ongoing proceedings.
Court documents obtained by PREMIUM TIMES revealed that back-and-forth formal and informal communications between Mr Usude and the US government's lawyers, particularly US Attorney Jeffery Spivak, went on for about two years, without Nigeria getting a clear coast to initiate the legal process in court for the recovery of the money.
Finally, on 3 June 2023, Nigeria filed a petition before the US District Court in Eastern California, for an "ancillary hearing", to request the court to modify its preliminary order of forfeiture.
An ancillary hearing is initiated in the US by a third party laying claim to assets traced to a convicted party and forfeited to the government by a preliminary forfeiture order.
Nigeria, through its petition for an ancillary hearing, asked the court to amend the earlier preliminary order of forfeiture and enter in its favour a final order of forfeiture of the money.
Pleading with the court to grant the request, Mr Usude argued that Nigeria "is the bona fide owner of those funds" and "a victim of misrepresentation" and fraud.
He said as of the time Nigeria entered into the contract to purchase the weapons, DCI and its agents failed to disclose that they did not have a US licence to engage in the sale and export of military products.
He also maintained that Nigeria's interest in the funds "is superior to any right, title, or interest of the defendant or the United States of America."
Nigeria meets US resistance
The US government is reluctant to release the money to Nigeria, an attitude that is apparent in court documents.
Eighteen days after Nigeria filed its petition for an ancillary hearing on 2 June 2023, the court in line with procedure, on 20 June 2023, ordered the US government to file its position on the petition.
To Nigeria's disappointment, the US, in its report filed on 20 July 2023, argued that there was a need to "conduct a discovery" before hearing the petition for an ancillary hearing.
A discovery is a pre-trial arrangement used by one party to obtain facts and information about a case from the other party.
The US government's request for "discovery" surprised Nigeria, given the US government's extensive investigations and the affidavit report that is part of court records, establishing that the Nigerian government was the source and owner of the funds in question.
US Attorney Mr Spivark, who filed the report, insisted that a "discovery will be necessary and desirable in this case". He added that his team was working with Nigeria's counsel "to finalise a discovery and briefing schedule."
He requested 14 more days to liaise with Nigeria's lawyer and file an updated report.
Therefore, on 4 August 2023, the court ordered Nigeria and the US to file their separate updated status reports.
Nigeria rejects US request for further discovery
Nigeria filed its status report on 24 January this year, rejecting the US lawyer's call for a discovery.
Its lawyer, Mr Usude, said: "no discovery is necessary as he has provided all the requested documents to the United States, in addition to documents already held and sealed by the United States."
He recalled how Nigeria had "stalled its claim" over the years "to allow the United States conclude the prosecution of the defendant Dolarian as requested by the counsel for the United States".
Bluntly, the lawyer wrote that the US "is stalling on resolving this issue."
"The United States has been aware of Nigeria's claim regarding the forfeited funds since November 2021, which is over two years ago," he added.
He therefore urged the court to set a date for hearing its petition.
Nigeria succumbs
Nigeria's arguments failed to strike the right chord with the court.
It succumbed to a discovery, following its inability to convince the court to jettison the US government's request for it.
On 27 March, Nigeria and the US filed a joint motion requesting that "discovery be opened for 90 days" and that the court should set a hearing date in September.
But even with Nigeria's concession to discovery, the US government wanted it to run beyond 90 days.
Citing what it described as the "highly complex" nature of the case and that it "involves substantial foreign discovery", the US government maintained that "additional time beyond the 90 days will be required."
But both parties saw merit in Nigeria's "desire to move the case along as quickly as possible".
Determined to hold the aces in the legal game, the US reluctantly agreed to the 90-day discovery window but ensured that the joint application made a provision for possible "modification of the discovery schedule as the deadline approaches".
Finally, the court, on 29 March, ordered that "the parties may engage in discovery for a period of 90 days".
It also fixed 30 September for a hearing on Nigeria's petition to modify the preliminary forfeiture order.
Frustrations
Nigeria's lawyer Mr Usude's frustrations with the US government's attitude to the case could be gleaned from different correspondents he sent to US Attorney Spivak and his office.
But one of the letters dated 1 November 2023 covers the field.
In the correspondence, Mr Usude reminded the US lawyer of a virtual meeting they held earlier that day where he pointed out that "all the documents" Mr Spivak requested were already in his possession.
While reminding Mr Spivak of his duty to be ethical as a prosecutor, Mr Usude also noted that a Homeland Security Investigations agent, Jeffery Kiser, "filed an affidavit in support of the application for warrant seizure detailing the transfer of funds from the Nigerian government to Ara Dolarian, his attorney, his company and attached various contracts for supply of weapons."
He also noted that despite the security concerns associated with tendering its National Security Adviser (NSA) office's account information to a foreign government, Nigeria still provided the US government with the information "that clearly shows the source of the funds that were transferred to Mr Dolarian's account."
"In your informal request for documents you requested for these same items that are in your possession," he wrote, adding, "Your entire case against Ara Dolarian was built and premised on the fact that he received money from the Nigerian government, I am very disturbed by the fact that you are now claiming ignorance of the fact that the funds belong to Nigeria."
There is no indication in court records that the US lawyer responded to the letter, but Nigeria's status report filed on 24 January 2024, would reveal that the prosecutor demanded more documents from Nigeria on two different occasions.
The day after it received the first set of documents, which included the NSA office's account information, the US lawyer made another demand on 2 November 2023 which Nigeria's lawyer responded to on 3 November 2023.
Again, on 3 December 2023, the US lawyer demanded more documents via an email, which was responded to by Nigeria's lawyer on 19 December 2023.
Mr Usude also said that he unsuccessfully sought to have a "telephonic meet" with the US lawyer. According to Mr Usude, the meeting did not hold because the "US counsel indicated that he was unable to hold any meet and confer before the end of January 2024."
US government angry?
Mr Usude's 1 November 2023 letter also offered an insight about the game playing out.
From the letter, the US government's hostile attitude to Nigeria's moves to reclaim the money appears to have stemmed from the lack of cooperation from the Nigerian government at the early stage of its investigations of Mr Dolarian and his company, DCI.
"In an earlier discussion with you, you indicated that you were angry because when you began the investigation of this case, you did not get cooperation from the Nigerian government," Mr Usude wrote addressing Mr Spivak.
While not denying Nigeria's alleged lack of cooperation with the US government's investigations, Mr Usude stated, "It might interest you to know that at the time of your investigation, the Nigerian government was in the process of investigating the arms for Boko Haram scandal that had ravaged the entire military institution and the Office of the National Security Adviser."
To show that Nigeria's investigation was not in vain, he added that after its investigation, "Air Vice Marshal Alkali Mamu was found guilty of receiving a bribe from Societe d'Equipment Internationaux and jailed for two years. The National Security Adviser was held in custody for over five years as a security risk." He was referencing the prolonged illegal detention of the former NSA, Sambo Dasuki, in violation of several court orders. Mr Dasuki, since 2015, has been facing trials over his handling of the arms funds as the NSA.
Mr Usude also stated that all major players in the arms scandal who "were investigated were dismissed, retired, jailed and proceeds from that scandal confiscated."
"This is as a result of the investigation carried out by the presidential investigative committee on arms procurement," the lawyer wrote.
Nigeria's funds
In March 2014, at the peak of the vicious attacks by Boko Haram in north-east Nigeria, the Nigerian government set aside $1 billion for the purchase of weapons to ramp up its military offensive on the terrorists.
The government gave the $1 billion to the Office of the NSA office to administer, Nigeria's lawyer, Mr Usude, told the US court.
In April 2014, the insurgents abducted 276 Chibok schoolgirls. The incident earned Boko Haram global attention and piled up pressure on the Nigerian government to not only rescue the schoolgirls but to destroy the terrorist organisation.
Sign up for free AllAfrica Newsletters
Get the latest in African news delivered straight to your inbox
As it would later be revealed by the Committee on Audit of Defence Equipment Procurement (CADEP) set up by then President Muhammadu Buhari's administration, contracts for the procurement of military equipment were awarded to the Société d'Equipment Internationaux (SEI) and its other affiliates in April 2014.
The committee, which investigated arms contracts between 2007 and 2015, found that the contract awards to SEI, its sister companies, through their owner, Hima Aboubakar, a controversial Nigerien arms broker, "fell short of established norms".
To execute the contracts, Mr Aboubakar got in touch with Mr Dolarian and his company and other agents.
Through various agents, DCI received funds of about $8.6 million ($8,618,647) in wire transfers between June and September 2014 for the purchase of military equipment intended for Nigeria.
US investigators would later find out that the funds paid to DCI were not held in an escrow account, a third-party account that could have helped to guarantee the funds and protect the interest of the parties involved in the contract. The money was used to pay a DCI agent in the Czech Republic and for other expenses, US investigators found out. They also said part of the money was transferred to various bank accounts controlled by DCI.
Arms funds scandals, alleged fraud and controversies
Nigeria's arms contracts and use of the allocated funds have been characterised by fraud, scandals and controversies.
The United States is not the only place Nigeria's arms funds have been seized.
In late 2014, a private jet was arrested in South Africa with $10 million cash that was said to be meant for the purchase of arms for Nigeria. The jet ferrying the money belonged to the then-president of the Christian Association of Nigeria (CAN), Ayo Oritsejafor, a close ally of Nigeria's President at the time, Goodluck Jonathan.
In January this year, the government of Jersey Island announced it has recovered on behalf of Nigeria $8.9 million looted through phoney arms purchase contracts during the President Jonathan administration.
Conviction has been rare, although there have been extensive prosecutions of military officials accused of accepting bribes from SEI and Hima Aboubakar in connection to military contracts. There has also been prosecution of politically exposed persons accused of fraudulently receiving part of the arms funds from the NSA office for political activities and personal expenses, as well as the prosecution of Mr Dasuki, who superintended over the disbursements of the arms funds.
In its efforts to bring Mr Aboubakar to account for the huge funds he received from Nigeria allegedly without commensurate supply of arms, the Economic and Financial Crimes Commission (EFCC), in June 2020, secured an order for the forfeiture of houses, an expanse of land and funds in different currencies alleged to be "unlawful proceeds" of the Nigerian arms contracts.
But EFCC's victory was short-lived as the court reversed the forfeiture order in July 2022, releasing the properties back to Mr Aboubakar following his legal challenge of the forfeiture order.
While the EFCC has declared him wanted for possible prosecution, the anti-graft agency is also pursuing an appeal against the ruling reversing the forfeiture orders on his assets.
