Ibori’s Legal Victory; in defence of Justice Awokulehin

“it’s a case of stealing whale and being charge for playing with fingerlings”.
James Ibori

Last Thursday, Justice Marcel Awokulehin of the Federal High Court, Asaba delivered a ruling quashing all the charges the Economic and Financial Crimes Commission (EFCC) had brought against Mr. James Onanefe Ibori and certain others. This came as a shock to Nigerians everywhere. For in their eyes, Ibori has been already presumed guilty as charged.

I am also concerned about the court ruling on Ibori’s case. Of all the 170 charges against Ibori, not even one could stick. The problem is the fault lies with the EFCC. It appears the EFCC prepared the case with sole aim of gifting Ibori a legal victory. I told guys castigating the Judge to turn their anger on the EFCC, the investigation and evidence adduced was appalling.

In trying to craft this article, I spoke to a Nigerian Lawyer, Mr Kayode Ajulo, counsel to the Delta State Elder Forum under the leadership of Chief E. K. Clark, OFR, CON who started the whole Ibori criminal issues. I also wrote Ribadu asking him to respond to accusation that he did a shoddy investigation. Then I spoke an aide to James Ibori.

According to Kayode Ajulo, before Ibori handed over to Uduaghan, he should have been impeached. The Delta Elder forum led by Chief E.K Clark upon discovery of financial sleeze against Ibori sent a letter of petition to EFCC. The allegation was that Ibori used a bogus Supplementary budget bill without the assembly passing it into law to siphon over 1billion Dollars (N165 billion), they therefore request for Ibori investigation and prosecution. 

And the EFCC, what did they do? When the EFCC hesitated to act, they had meeting with then EFCC Chairman, Nuhu Ribadu where he said his hands are tied. By whom? He did not say. So Mr. Ajulo was briefed to go to court to seek order of mandamus to compel EFCC to investigate Ibori and to fortified their legal team the Forum also invited Chief Awomolo, SAN in ensuring that their son, Ibori account for his financial misdeed.

The matter is now in the Court of Appeal as the Federal High Court ruled that the Delta State Elder Forum lacks locus standi to sue Ibori because those directed to write the petition were not the Applicants in the application for mandamus, but one of Mr. Ajulo’s colleagues, Barrister Allen Agbaka got the another order compelling the EFCC to investigate Ibori from a Lagos court. Now when the EFCC proceeded against Ibori to everybody surprise, EFCC only charged Ibori for spurious offences not up to N9 billion

In the words of Mr. Ajulo, “The EFCC charges against Ibori is akin to a situation of accusing a man of stealing 5 whale and you turned around to charge the same man with caressing 15 fingerlings”. 

Tony Eluemunor, media assistant to Ibori told me: The reason why the trial ended in a fiasco for EFCC is that Ribadu, while preparing the case against Ibori did not bother to seriously search for evidence of any wrong doing. He was just out to fight and win another battle just like he did to Alamiesieyeigha and Tafa balogun. He would lock you up for years until you are broken enough to sign a plea bargain. Finish. But that plan failed and when the case went on trial, his inadequacies showed.

Barrister Ajulo concurs: EFCC simply…they bungled the case. Nigerians should ask: why did they remove Rotimi Jacob, why was Ibori was arraigned in Asaba Federal High Court, this are fundamentals of voidable trial/judgment that exonerates Ibori.

He continued: Ribadu told Delta Elders that his hands were tied, Chief Clark is still alive. Perhaps, the hands of Waziri are tied too!

Why can’t they try Ibori on a clear case of supplementary budget running to N165 billion?

Another thing baffles though, is Ibori’s application a ‘no case’ submission? According to Mr Eluemunor; No, it was not a no case submission. That could only be made after a case has really taken off, but this never took off, The Defence simply applied that the charges be quashed as there is no evidence, prima facie evidence to sustain a trial. Finish. In Nigeria, we say, please don’t waste government time. That was what the Defence told EFCC and Ribadu.

He continued: The blame is squarely on Ribadu. he did a shoddy job. No collaborative evidence. But would he have done that? The answer should be obvious!

Why are Nigerians castigating Justice Marcel Awokulehin of the Federal High Court, Asaba then? Eluemunor answered: The problem here is that not many people have the time to master an issue before they begin to debate it. And once they have formed an opinion, they refuse to deviate from it. But an issue has to be mastered. The Ibori – Ribadu fight started in 2003. This is just second round of that fight. And Nigerian presidential politics runs through it.

On Friday, An Aba-based civil society organisation; Human Rights, Justice and Peace Foundation (HRJPF), flayed the Lagos-based Socio-Economic Rights and Accountability Project (SERAP)’s condemnation of the ruling by the Federal High Court,  Asaba, last Thursday. 

According to the statement signed by the group’s President, Comrade Chidi Nwosu, “We of the Human Rights, Justice and Peace Foundation (HRJPF) state as follows:
1.    That SERAP criticised the Judge without reading the entire ruling as reports said that Justice Awokulehin himself stated in the open court that Certified True Copy of the ruling would only be available on Tuesday. We eagerly await that CTC.
2.    That SERAP did not appear to have appreciated the reports of that ruling as published in several newspapers of Friday 18th December. In those reports, the Judge made it clear that he abide by the EFCC Act. 

3.   Thus, SERAP’s condemnation of that ruling as failing to exploit the Article 20 of the UN Convention Against Corruption and the African Union Convention on Preventing Corruption, is an unwarranted attack against the Judiciary, an important arm in the fight against corruption.

SERAP insisted that Justice Awokulehin should have gone ahead to ask the defendants to explain the source of their wealth since he said that there was evidence of movement of money. But Justice Awokulehin, in the newspaper reports, had said that “On Ibori’s relationship with MER Engineering and money laundering charges against him and the company, that “evidence proffered is statements of witnesses and statement of accounts.

Documents submitted showed that (Ibori) was a Director of the company but resigned his directorship on becoming Governor.

Also there is no evidence of any illegal act. Letter shown to court confirmed that Chevron, Shell, NNPC (Nigerian National Petroleum Corporation), Church oil and Gas and ventures paid money into the company’s account for a contract performed. No evidence to show illegal payment.
4. On allegations that money was illegally paid into Ms. Udoamaka Okoronkwo’s , (the second accused)  account: “The second accused has been shown to be a contractor. It is confirmed that all relevant documents have been shown to EFCC. There is no correlation between the accounts and dates.

The witness statements showed that there was real contract and lodgements deposited. 

Second Accused thereafter issued cheques to various persons such that the account was depleted from N21 million to N4 million but nothing was paid out to (Ibori). Really there was no evidence of illegal act or that Ibori even benefitted in any way or money funnelled into his account”.  
They continued: In as much as we would love to see any who has stolen Nigeria’s money convicted in court, we seriously oppose this unwarranted attack on a Judge who ruled that for money laundering charges to hold, underlining criminal charges, and predicate offences such as incidence of corruption, abuse of public office, resources gotten from illegal acts or whether any person was aided by any person to disguise money from an undeclared origin, has to be established. 

Here, the Judge held that to merely say that money was paid from a government account into another account is no proof of money laundering. 

The Judge then ruled that going by Sections 27 and 28 of the Evidence Act, “That an affidavit shall not contain extraneous matters. Perhaps the drafters of the EFCC Act would have criminalised every transfer of money, if they wanted all such transfers to be criminal acts. But they did not, and the rule applies without exception as EFCC Act mentioned any other illegal act – even remotely connected with a crime”.

Thus, he ruled that “an accused must be sufficiently linked to a crime but that this has not been done here”.

From indications then, Justice Awokulehin ruling stands on solid ground. The former Chairman of the EFCC, Mallam Nuhu Ribadu has not responded to my querry, but the present EFCC under Mrs Farida Waziri in a statement signed by Femi Babafemi, Head, Media & Publicity said:

In view of the attention the judgment of Justice Marcel Awokulehin of the Asaba Federal High Court has attracted globally, the Economic and Financial Crimes Commission, EFCC wishes to state the following facts regarding the decision of the court to quash all the 170 count charge against a former governor of Delta  State , Mr. James Onanefe Ibori and others.

1.    We remain committed to our earlier statement that the judgment is bound to fail on appeal at a higher court. 

2.    Our lawyers have the instruction of the EFCC Chairman; Mrs. Farida Waziri soon after the ruling was delivered on Thursday December 17, to obtain a Certified True Copy (CTC) of the judgment. It will interest the public that our lawyers applied for the CTC before leaving the court room to enable us file an appeal today, Friday December 18. Surprisingly, our lawyer was denied a copy of the same judgment the judge claimed in the open court was ready several weeks ago. 

3.    In spite of this obvious challenge, our lawyers have been instructed to file a notice of appeal on Monday December 21 based on the records taken in the court. 

4.    We also wish to state that the proceedings in Asaba originated from Kaduna where the charges were first filed in December 2007. The same charges were only referred to Asaba for trial. 

5.    Unfortunately, the accused refused to take plea and instead raised objections to the charges.

6.   It is important to note that the matter was not tried; no evidence was led or taken by the court. The ruling was based merely on charges and proof of evidence. 

7.     The accused have only been discharged and not acquitted.  As such, we are convinced that the case is not over yet as we are determined to take it to a logical conclusion, notwithstanding the obstacles being brought our way.   

This to me is a very weak defence to say the least; just as their assertion to go on appeal is an attempt to cover the eyes of Nigerians with wool.       

As pointed out by Ralph Nwokike, If EFCC failed and neglected to adduce the hard evidence and witnesses needed to ground a conviction against Gov. Ibori in Asaba, how on earth are they going to Court of Appeal with new evidence when   they failed to introduce them at the Court of first instance?

One wonders how Gov. Ibori could stand trial at the High Court in Asaba, and not a single evidence or witness was introduced against him. And yet, EFCC was waiting for a favourable outcome of having a conviction against him based on statement from Ribadu alone. What kind of lawyers do they have working for EFCC in Nigeria?

Nigeria has a long way to go as far as fighting corruption is concerned. Personally, the whole exercise of Gov. Ibori’s trial was stage managed, laughable and nothing more than playing tricks in the minds of Nigerians. The EFCC pretending they would fight Ibori’s case at Court of Appeal (CA) is just nonsensical. It is part of the game, window dressing and melo-drama inherent in the manners these people handle serious cases,   when someone as highly placed as Ibori is involved.

Part 2 of this article will examine critically our money laundering laws and compare that with those from foreign jurisdictions and international instruments to consider whether a charge of money laundering should be predicated on corrupt practices and whether it is immaterial that Delta State has not complained about any missing money.

Seeing that the Judge accepted Ibori’s counsel’s argument that for money laundering charges to hold, underlining criminal charges and predicate offences such as incidence of corruption, abuse of public office, resources gotten from illegal acts or whether any person was aided by any person to disguise money from an undeclared origin.