While we are not at this time exactly concerned with whatever is the content of Justice Awokulehin’s judgment or whenever he now chooses to deliver it, we are worried that his antics at the Asaba court are now affecting proceedings with regard to the case at Southwark Crown Court, London.
Statement On Developments With The Ibori Trial At Asaba, Nigeria And The Adjournment Of The Case Against His Associates At Southwark Crown Court, London –
Respect Nigerians Coalition as an organization believes in the inviolable principle of civilized justice which states that every accused person is innocent until proven guilty. So, on that basis, we have no case against James Ibori, the former Governor of Delta State and his sister and associates on trial in Nigeria and the United Kingdom, because, as far as we know, they are yet to be convicted of any offence. However, we do have serious reservations about how the case against Ibori is being conducted in Asaba, Nigeria. We have followed the case closely and strongly believe that it is a sad example of how a case should not be prosecuted, defended or adjudicated.
As citizens and stakeholders in the wellbeing of our nation, we, like most Nigerians, feel very strongly about the issue of political or public sector corruption and the obvious harm it’s done and is still doing to our body politic. Indeed, it is something that hardworking and law-abiding citizens of every nation must take seriously. For instance, figures released by the United Nations just a few days ago indicate that political corruption costs countries as much as £951 billion ($1.6 trillion) every year! It is nothing short of crime against humanity, because it not only kills development, it kills people en mass! As defenders of the integrity of Nigeria and Nigerians, be they at home or abroad, we believe that such a disease that has blighted the life of our nation so terribly must be fought to a standstill in any forum.
Thus, prosecutions of persons for corruption or for benefiting from corruption or handling proceeds of corruption naturally interest us, even as we fully respect the accused persons right to be considered innocent until proven guilty. That is why we have quietly followed the cases in Nigeria and United Kingdom and that is why we think it’s about time we speak up, so as to focus our minds on developments and their impact on the fight for justice and national dignity.
On Friday, 2 October 2009 at the London Southwark Crown Court, Judge Christopher Hardy, after days of listening to prosecution and defence counsels, took the decision to adjourn the trial of James Ibori’s sister, Christine Omatie Ibori-Ibie; his personal assistant, Adebimpe Folayinmi Pogoson and his mistress, Udoamaka Okoronkwo to Monday, 9 November 2009 on the grounds that he had received indications from the Federal High Court, Asaba that the case against Ibori will be concluded at most two weeks from 26 October 2009. This is against the background of the defence consistently insisting that Udoamaka Okoronkwo be extradited to Nigeria to stand trial with Ibori, being the second accused person in the case going on at the Federal High Court, Asaba. They sought to create a nexus between both cases by claiming that if the case in Asaba is dismissed or if Ibori is declared not guilty, then there would be no basis to continue the case in England as the purported proceeds of crime for which the ladies are being tried are supposedly stolen public money from Ibori or related to Ibori.
At the time, we thought the judge made a Solomonic decision. Of course, it wasnâ€™t exactly one strictly based on law, but according to the judge, he thought it would be fair to wait and allow the Asaba court conclude the Ibori trial, as it had promised to do within five weeks from thence. Though the Ibori people celebrated this decision like some kind of victory; it wasnâ€™t. All the accused persons, including Okoronkwo, are to remain in England as their bail conditions weren’t varied.
More importantly, the judge on adjournment emphasised the fact that the outcome of the trial in Nigeria will not affect the trial in England in any way. The reasons for this are obvious. There are two different issues at play in both courts and there are two different regimes of laws applicable. Nigerian criminal laws and legislations would govern the Asaba affair and the Proceeds of Crimes Act, the Criminal Justice Act and the common law will govern the UK trial. The UK processes and evidence do not depend on or have to follow the Nigerian one. They are two different jurisdictions. The accused persons are not accused of breaching Nigerian law in the UK, but of breaching the law of the United Kingdom in the UK and are thus answerable to the British judicial system, irrespective of what goes on in Nigeria.
In essence, the decision meant no more than simply postponing the substantive trial for a few more weeks if only to satisfy Judge Christopher Hardy’s desire to be seen as fair. More crucially though, it put the pressure on the judicial authorities in Nigeria, not only by internationalising the Asaba affair, but by creating a legitimate expectation that the Ibori case would have been concluded before the London trial resumes on 9 November, 2009.
Of course, there have been debates about whether or not Justice Marcel Awokulehin wrote directly to the London judge or whether it was Ifeoma Esogbue or one Mr Dawodu of the Registry of the Federal High Court, Asaba that did so. Or, indeed, whether as claimed by Emeka Arinze, one of Ibori’s lawyers, he was the one who sent it (in form of answers to his inquiries with the court) to Andrew Trollop QC (Okoronkwo’s lawyer in the UK) who then presented it to the London judge as evidence that the case is ongoing and would soon be concluded. Yet, whatever the truth about the source or authority of the said letter, one thing not in dispute is that it is genuinely from the Federal High Court, Asaba. Therefore, one would have expected the Nigerian judiciary to keep to its word. Sadly, not for the first time over this case, the Asaba court has been found wanting.
The danger signals have been flashing even before the case was first called up on Monday, 27 April 2009. First, the shady circumstances surrounding the origin of the court didnâ€™t give room for much confidence. On 19 December 2008, the Justice Amina Augie-led Court of Appeal in Kaduna ordered that the case, which was originally being tried at the Kaduna Federal High Court, be sent back to the Chief Judge of the Federal High Court to be reassigned to a court of competent and proximate jurisdiction. At the time of this decision, there was no Federal High Court in Asaba and there was no known plan to establish one there. But by April 2009, the court has been established and Honourable Justice Marcel Awokulehin who has had a close relationship with Ibori from their days as civilian operatives of the General Sani Abacha regime had been installed to hear the case against Ibori.
But all the above paled into insignificance when the trial really began and when the Economic and Financial Crimes Commission (EFCC) unveiled their lead counsel to prosecute the case. He turned out to be none other than Ibrahim Isiyaku (SAN), who just a few months before, while the case was ongoing at Kaduna, had in his capacity as an Independent Legal Consultant to the EFCC, given a very negative opinion on the chances for successful prosecution of Ibori and co. In fact, in a line-by-line destruction of the EFCC case against Ibori, he flatly declared that the prosecution of the accused persons on all the grounds will not succeed. He described the charges as nebulous, wild, spurious, fishy and speculative. In fact, none of the 170-count charge survived Mr Isiyaku’s crushing hammer and yet, he is the one EFCC brought forward to prosecute the same charges against Ibori in his maiden appearance on their behalf.
The fact that neither the judge, the Nigerian Bar Association (NBA) nor the judicial supervisory authorities saw this stone-cold conflict of interest for what it is says enough about the state of justice administration in Nigeria. Indeed, it is no surprise to some of us that all we have seen from the proceedings are the badly disguised attempts of the prosecution, defence and judge falling over themselves to give James Ibori a gold-embroidered get-out-of-jail card. In fact, by the time of the last adjournment (two weeks after the judgment has been written, according to Justice Awokulehin), no plea has been taken and the substantive case has not been heard. All that had happened were the unending lament over the absence of Udoamaka Okoronkwo, the constant adjournment for one frivolous reason or the other and the Ibori’s lawyers demand that the whole case be thrown out. Curiously, the judge conveniently interpreted the latter as a challenge of his jurisdiction, even though this same case was transferred by the Court of Appeal all the way from Kaduna precisely because the Federal High Court, Asaba was ruled as the proper jurisdiction!
Of all the above, the proceedings in Asaba over the absence of Udoamaka Okoronkwo was the most disturbing. It actually calls to question the real designs of those who purportedly want her home to stand trial with Ibori at Asaba. Of course, there is no doubt that many Nigerians believe that the concerted attempt to get her out of the United Kingdom is only aimed at stopping her from taking the witness stand in a United Kingdom court, considering that she is a key person in the prosecution’s case in London. In truth, following the developments on the legal front and the fact that she actually jumped bail only to be arrested and returned back to the United Kingdom from France, there is very little chance of her ever returning to the UK if she steps foot outside the jurisdiction.
On 27 July 2009, the issue of her extradition reared its head again when Ibrahim Isiyaku, on behalf of the Federal Government, used the floor of the court to berate the British authorities for not relenting over the request for her extradition. Apparently, the Federal Government through the EFCC, in the form of an affidavit sworn to by Steven Otitoju (an Assistant Commissioner of Police and the man brought in to replace Ibrahim Lamorde as the Director of Operations) had given an undertaking to arrest and detain Udoamaka Okoronkwo in Nigeria throughout the period of her trial; but this was not enough for Geoffrey Rivlin QC, the judge in charge of the London case at the time. Having perused the affidavit and noting the factual discrepancies therein (for instance, a claim that men of the Metropolitan Police were due to give evidence in the case at Asaba when no such arrangements were made or contemplated) and having also considered the underhanded tactics being employed by Mr Michael Aondoakaa, the Nigerian Attorney-General, the judge was reluctant to trust them. Nonetheless, he indicated his willingness to accept an undertaking from Justice Marcel Awokulehin that he would secure her presence in Nigeria.
Mr Isiyaku curiously declared this demand on Justice Marcel Awokulehin as insulting to Nigerian judiciary and legal system. He did not wait for the judge being asked to speak on whether or not he was willing to make the undertaking; he simply made the decision for him by using the floor of the court, in front of the same judge, to tell the world why the judge cannot make such an undertaking. Mr Ibrahim Isiyaku, who claimed such a request is not allowed, ought to know that in our highly globalized world, the demand being made by Judge Rivlin was proper under the well-established principle of judicial comity, which allows foreign courts to grant reciprocal assistance or help one another in mutual pursuit of justice in a particular cause. It is not deference to foreign interest or foreign law, but a deference or respect to foreign courts as courts, rather than as agents or faces of foreign governments. Rather than this being based on strict legal principles, it is a practical and conventional way to resolve extra-jurisdictional issues that could scupper the proper administration of justice in any of the jurisdictions in question.
Beyond the legalese though, what this episode reveals is that Justice Awokulehin, for reasons best known to him, wasn’t in a position to independently make the decision on whether or not he was going to make the undertaking to secure Okoronkwo. Why did he allow Isiyaku to speak for him? Was Isiyaku not the one that made the application for a bench warrant on Ms Okoronkwo? So, why did he suddenly begin to say the same judge who issued the bench warrant cannot make the undertaking particularly because Ms Okoronkwo had not appeared before him? The fact is Isiyaku shouldn’t have been the one to speak on this matter and the fact that Justice Awokulehin to whom the request was addressed didn’t say anything on the issue is telling. More telling is the fact that he did not make the undertaking as requested. If the prosecution in Nigeria and defence in Nigeria and the United Kingdom are so keen on getting Okoronkwo to Nigeria and if Mr Awokulehin’s court was so hamstrung about the trial because of the lack of her presence, why didn’t the judge make the simple undertaking?
It is our belief that Honourable Justice Marcel Awokulehin couldn’t make the undertaking to secure Udoamaka Okoronkwo before his court because other forces were in charge in his court. He knew that Judge Geoffrey Rivlin QC was counting on his honour as a fellow judge to secure Okoronkwo and ensure no harm comes to her, but knowing clearly that he could not give this guarantee, he left it to the evidently compromised prosecution to make the curious case that it was unacceptable and to use this contrived stalemate as an excuse to drop the charges against her. It was no surprise to see Ibori lawyers jump up immediately after to declare that they were going to ask for the case against Ibori to be thrown out. There has been no worse case of the prosecution, defence and bench working in tandem to help accused persons avoid answering to criminal charges in an open court.
Since the 2 October 2009 adjournment of the London case, further developments in Asaba have confirmed our worst fears. On Monday, 12 October 2009, the court met to formally adopt the briefs filed by both parties and Justice Awokulehin fixed 6 November 2009 for ruling on whether or not to quash the charges against Ibori. Come 6 November, Justice Awokulehin was now telling the world that though the judgment was ready for two weeks before then, he was deferring the ruling to 23 November 2009 due to some issues that came up between the last adjournment date and November 6 which he said must be addressed. He did not say what these issues are, except that he would rather err on the side of caution than deliver the judgment on 6 November 2009.
The question is what happened between 12 October 2009 and 6 November 2009 that would stop a ruling already prepared two weeks before the last date being delivered as expected? The only thing Nigerians know that happened was that the judge was asked by the Chief Justice of the Federation, Justice Idris Kutigi and the National Judicial Council to respond to certain petitions against his handling of the Ibori case. He was not accused or charged with anything; he was not facing any disciplinary procedure; all that was asked of him by the appropriate authorities was to respond to these petitions, something that must be routine in his job as a judge in Nigeria. If as he said, the judgment has been ready for two weeks before 6 November, it means he must have written it after 21 October, which is the date on the letter sent to him by the Chief Justice of the Federation, Justice Idris Kutigi informing him of the petition from Debo Adeniran of Coalition Against Corrupt Leaders (which is the first of these petitions) and asking for his comments within two weeks of receiving the letter. What this means is that neither the petition nor Justice Kutigi’s request affected the writing of the ruling two weeks before.
So, why couldn’t he deliver it when he came to court on 6 November? Why couldn’t he deliver it if he felt it was worth informing the public that it’s been ready for two weeks? Would the content of the judgment change now simply because he was asked to make his comments? Shouldn’t the opportunity to explain himself or comment on the petition allow him to confirm the basis of his decision, rather than hide the judgment, claiming he wants to err on the side of caution? What exactly wasn’t cautious in the already prepared judgment as it is? Indeed, why would the judgment of a Federal High Court depend on the mood of anyone, if indeed it is one written in furtherance of justice?
While we are not at this time exactly concerned with whatever is the content of Justice Awokulehin’s judgment or whenever he now chooses to deliver it, we are worried that his antics at the Asaba court are now affecting proceedings with regard to the case at Southwark Crown Court, London. Indeed, on Monday, 9 November 2009, we received the news of Judge Christopher Hardy’s adjournment of the London case to 24 November 2009 with mixed feelings because we had thought whatever happened at the Asaba court after 6 November 2009 was never going to affect what happens in London.
We hereby draw Judge Christopher Hardy’s attention to the fact that this is not the first time the authorities at the Asaba court have sought to use their proceedings to influence what happens in London. These contrived prevarications and vacillations over dates for the duration of the trial have been constant features of the trial even when Judge Geoffrey Rivlin QC was presiding over the London case. Judge Hardy’s doctrine of fairness should work both ways. If he thinks it is only being fair to the accused persons to adjourn the London case until the Asaba matter is concluded, he has to consider what is equally fair to the Nigerian and international publics interested in this matter. It is our strong view that he gets on with the trial once it is clear, as it is now, that the Asaba authorities are just a bunch of timewasters.
Finally, we would like to end this Statement by addressing an issue constantly being brought to our attention by Nigerians at home and abroad. A lot of people are telling us that they are not very clear about the relationship between the case at the Federal High Court, Asaba and the one at Southwark Crown Court, London. And, of course, things are not helped by the latest adjournment in London, because it helps perpetuate the myth that the outcome of Asaba will affect the trial in London, despite the fact that the judge has said there is no such relationship. Though we have tangentially addressed parts of the issue here already, we need to make more clarifications.
The defence in Nigeria is claiming that the case against Ibori in Nigeria is one for money laundering and therefore similar to the United Kingdom case with a view to using the outcome there as persuasive authority in London. They are claiming that the prosecution has established no case of a predicate crime which must be a condition precedent before a money laundering charge can stick. The defence in London is hoping this succeeds so that they can equally claim that since Mr Ibori has been found not guilty of corruption or being in possession of proceeds of crime in Nigeria, the ladies in London being accused of handling proceeds of crime from him would have no case to answer, since the prosecution in London will then have to prove that the money or property in question are proceeds of crime in a situation where no fact of crime has been established.
However, what the prosecution in the UK is saying is that there may not be direct evidence to show that there is corruption, but there is enough circumstantial evidence to show that the way in which the defendants handled funds and assets amounts to a crime. In other words, for the prosecution, it is not about proving corruption or that the proceeds come from some crime committed by Ibori or any other; it is about proving that the defendants are liable under the Proceeds of Crimes Act (POCA) 2002 by making inferences from the way the defendants handled funds and assets in question, because the UK law does not make distinction between direct and circumstantial evidence in terms of their weight and importance in these proceedings. What matters is that irrespective of the type of evidence, it is enough to establish guilt beyond reasonable doubt. In POCA cases, the courts have accepted that there are two ways that the Crown can prove that the property or money in question is the proceeds of crime. One way is by showing that it derives from conduct of a specific kind or kinds and that such conduct is unlawful and the other is by evidence of the circumstances in which the property is handled which give rise to the invariable inference that it can only be derived from crime.
So, while the first is via direct evidence, e.g. from proof that it is the proceeds of corruption – which may or may not be established; the second, on the other hand, squarely puts the accused persons in the picture if there is genuine suspicion arising from how they handle money. In other words, the onus would be on the accused to prove that the money in question is not the proceeds of crime, rather than the prosecution proving that it is indeed the proceeds of crime. What this means is that Ibori’s guilt or innocence in Nigeria has no bearing on the guilt or innocence of his sister and associates in the United Kingdom. The prosecution in the United Kingdom does not have to prove Ibori’s corruption. All it has to show is that there is enough circumstantial evidence to doubt the source of the money and property handled by the ladies.
Ladies and Gentlemen of the Press, the above is our view on this issue for now. We commend you for your vigilance in these times. Indeed, we were pleased to know that you as journalists recently met with other civil society groups under the aegis of the Anyiam Osigwe Foundation to discuss corruption and proffer solutions to the menace. We at Respect Nigerians Coalition will also put programmes in place to engage you fully in that regard. What we need is a commitment to change. Once we get that commitment from a critical number amongst civil society groups and journalists, we will all work together to usher in the kind of fair and just society we crave. Please, keep up the good work and persevere.
We call on Nigerians at home and abroad to follow developments on the Asaba and London cases closely as their outcomes may very well define the next stage of the battle against corruption in our country. Genuine patriots and civil society groups must not go to sleep now. Whether in Asaba or in London, we need to make our presence felt. We need to speak up in defence of national decency.
(For and on behalf of Respect Nigerians Coalition)