For Nigeria today, armed robbery and extortionist kidnapping are easily the most serious, Number 1 domestic security problem today for the country but ARE YAR’ARDUA’S GOVERNMENT & OTHERS REALLY SERIOUS ABOUT THE WAR AGAINST ARMED ROBBERY & KIDNAPPING IN NIGERIA? The Nnewi “Test Case” in Anambra State.
Part 2 By Benjamin Anosike, Ph.D.
Read also Yar’adua’s Government; really serious about fighting armed robbery and kidnapping?-Nnewi in Anambra as test case (1)
DOES THERE EXISTA “PRIMA FACIE” EVIDENCE IN THIS CASE FOR THE DPP TO CHARGE OGBUAWA & OTHER ACCUSED PERSONS TO COURT?
Of great worry and concern, of course, and of great speculation, is what is likely to be the decision by the DPP upon his said review of the case files? To be sure, there are wide misgivings especially within the Anambra State government and public, and the civil society, the Nnewi and Anambra Police, and others, that the basic aim of taking over the case by Mr. Aliyu and his DPP law officers at Enugu and Abuja, is precisely to try remove Ogbuawa’s name from the crime charge sheet and thereby effectively end any legal liability or accountability whatsoever ever for Ogbuawa.
To be sure, it is true, that deriving from the Nigerian Constitution, under Section 174 thereof, the Attorney General of the Federation (AGF), represented here by the DPP, has the power to take over or to discontinue any criminal matter pending before any court, and in deed, at least in theoretical terms, this awesome power – more commonly known by lawyers as the nolie prosequi powers – may be exercised by the AG under any guise or for any reason whatsoever, notwithstanding the evidence, and that it is not subject to any judicial review.
Clearly, as a practical matter, it is possible – just possible – that the Federal AG, meaning his agent, the DPP office of Mr. Emeka Nwokolo and Mr. Silas Amon, of the Federal Ministry of Justice office Enugu, who are currently directly in charge of the case at Awka, or Mr. S. Aliyu of the DPP office of the Federal Ministry of Justice, Abuja, who is the superior of the Enugu DPP team, just might conceivably exercise the nolie prosequi, and decide that they’d rather discontinue or terminate the case come the adjournment date of the case, October 5, 2009.
Quite possibly conceivable! However, I must respectfully venture to assert that, given all the unusual, in deed, unique, set of facts and circumstances involved in this case, such outcome is, in my humble assessment, patently quite unlikely. Certainly, it would be the most perplexing, if shocking, thing to most people familiar with the case, if that were to happen!
THERE’S A MOUNTAIN OF EVIDENCE ALREADY AVAILABLE, AND STILL MOUNTING
To begin with, there’s simply an unusually uncommon mountain of evidence already amassed in the case against the accused persons, all strongly favoring, even crying, for the prosecution of the case. HERE, THIS IS A MOST IMPORTANT POINT OF LAW YOU MUST FIRST UNDERSTAND: bear in mind that what is at issue here, is NOT whether Ogbuawa or any single one of the other 20 accused persons in this case is deserving of being convicted or should be found guilty. It is NOT whether these persons (each or any one of them) have sufficient evidence against them such that they now ought to be adjudged or pronounced “guilty,” or even “innocent,” in the case.
Rather, the only matter at issue here right now in this stage of the case, is whether, based on the evidence currently in the court and police files, such evidence is enough such that it reasonably warrants that these accused persons ought then to go before a judge right now, and be legally examined and judicially TRIED on the basis of whatever other evidence that might be available on the case to then determine, in this “trial,” their guilt or innocence in the charge.
Put another way, in a criminal case of this nature, there are essentially TWO phases: the first phase is the ARRAIGNMENT phase (this is the current phase confronting the DPP), and the second phase, is the TRIAL phase. Under the law, in the arraignment phase of the case (the phase that the DPP and others are involved in right now), the “burden of proof” (that is, the amount or standard of evidence) that is required of the criminal investigator or prosecutor (say, the DPP officers, in this case) to meet, which would immediately be considered to be sufficient, legally, to warrant charging a case to court for a trial, is said to require a “low threshold.” It is, basically, the standard of evidence akin to what is called in criminal law terminology, the “prima facie” standard of evidence.
The term “prima facie” is a Latin expression which means “on its first appearance,“ or “by first instance,” which is common in common–law jurisdictions (such as Britain, and through it, Nigeria), and basically denotes evidence which, if not rebutted, is deemed immediately sufficient to prove a particular position or fact. But, here’s the relevant point about this: the “threshold” required for the criminal investigator or investigator to meet this standard of proof or evidence, is VERY LOW and readily easy to meet.
In a “prima facie” standard, the evidence need not be conclusive or irrefutable, and any evidence rebutting the case, if any, need not necessarily be considered in assessing the overall evidence. In fact, the standard of proof called for here, is very similar to that which falls under the rubric of “probable cause” standard used under the United States jurisprudence used by grand juries merely to determine whether to issue an indictment against an accused or a suspect – meaning whether to charge (as in the matter presently confronting the DPP in the Innoson case) an accusation to court for trial. In the American criminal context, the U.S. Supreme Court in the United States v. Sokolow, 90 U.S. 1 (1989), determined that the PROBABLE CAUSE standard only requires “a fair probability that contraband or evidence of a crime will be found.” And just to give you an idea of just how LOW this standard of evidence really is, though the U.S. courts vary in how they determine what constitutes a “fair probability,” many use 30 percent, others 40 percent, and others 51 percent!
HERE IS THE CENTRAL POINT TO BEAR IN MIND HERE: that, it is ONLY this very standard – this ludicrously very LOWLY standard or threshold – of “prima facie“ or “probable cause” evidence, that the DPP is required to meet in the pending instant case in order to warrant his charging the Ogbuawa case to court and allowing a trial of the case before an impartial judge to occur right away!
Given the above extremely LOW “threshold” standard of evidence required, under law, to warrant institution of the criminal arraignment of a suspect or an accused, the question that immediately comes to mind for me, is WHY, AT ALL, WAS IT EVEN NECESSARY OR WARRANTED THAT THE DPP Mr. ALIYU AND HIS COLLEAGUES WOULD EVEN SEEK ANOTHER FRESH “REVIEW” OF THIS CASE? A case that had already gone through the excruciating scrutiny of an uncommon array of “reviews,” in so many jurisdictions all across the country, and which had, at long last, been finally passed for arraignment by another team of criminal prosecutors from the Nigerian Police, as well as by the Anambra State Attorney General, and even by duly constituted courts of law of the State of Anambra?
OVERWHELMING EVIDENCE TO ARRAIGN OR INDICT ALREADY IN POLICE POSSESSION ON SUSPECTS
In deed, in point of fact, a close but objective review of the records and history of this matter by this writer, clearly shows that the LOWLY standard of “prima facie” evidence of probable involvement in a crime required under any civilized system of jurisprudence to warrant permitting an arraignment of a case to go for a trial before a judge, has already been more than met and even surpassed in the instant case in question.
That, in deed, the evidences that have been amassed and are already on the police and court records for the benefit of the police prosecutors, or for the Abuja DPP’s Mr. Aliyu or Messrs Emeka Okolo and Silas Amon of the Enugu DPP office, are already so huge and vast, that they are in deed far superior to what the average prosecutor would be happy to have in a case even to win an outright conviction in an actual trial, and not simply in an arraignment.
That there is, in fact, ALREADY, an overwhelming mountain of credible evidence already sitting in police and court files far sufficient to warrant the mere arraignment (indictment) of the Ogbuwa suspects in this case under any civilized system of jurisprudence. Remember the basic, charge against Mr. Ogbuawa? That he has been, or might have been, involved as a mastermind, directly or indirectly, in the kidnapping of some three persons abducted in the March 2007 Innoson kidnapping case.
And that’s all! Certainly, since that fateful March 2007 event, hasn’t the record been rather overwhelming that the investigations by the police have turned up an array of evidence, much of it quite direct and incriminating, linking Ogbuawa to the incident and to the criminals who perpetrated the abduction? Just take a brief look, for a little idea, at the various pieces of hard evidence long in the police files and in previous court proceedings. In the case before an Nnewi High Court judge, for example, the following had been established, among others.
1) A print– out from Mobile phone company showing a trend of telephone communications between Mr. Ogbuawa and the kidnappers shortly before, as well as after, the victims were abducted;
2) evidence that Ogbuawa, who is a major motorcycle importer, made a donation of 5 brand new motorcycles to the kidnappers, a move which Ogbuawa himself directly admitted but claimed was part of the condition for his release by the kidnappers after his own abduction. And, directly from the ruling of Justice P.A.C. Obidigwe of the Nnewi State High Court of June 11th 2007, we find, already, that Ogbuawa “admitted or did not deny” a great deal of incriminating evidence. Evidence such as the following:
a) that the Innoson kidnappers “dressed in military uniforms visited him with a Mitsubishi L 300 bus in his home at Nnewi,”
b) that his “in law, one Mr. Okechukwu, was one of those who kidnapped” the Innoson kidnap victims;
c) that Ogbuawa advised Sylvester Unigwe’s (one of the Innoson kidnap victims) wife to phone the Innoson Director and ask that he gave the kidnappers any amount they demanded; and
d) that he was the one who had given the name Ugochukwu Iloka, a prominent local businessman, to the kidnappers as a good prospect for them to abduct and/or demand ransom from, among others. Clearly, even with just this amount of evidence only, could the foregoing be more damning or more formidable evidence, against a suspect in a case? And clearly, how could any credible prosecutor realistically contend, in any degree of good faith, even in the face of such a mountain of evidence ALREADY well–tested and verified, and ALREADY on the record, after well over two years of close judicial scrutiny of all aspects of it, that it does not already meet or exceed the lowly standard of “prima facie” evidence required to warrant a simple matter of court arraignment?
THEN, THE NEWEST EVIDENCE FURTHER NAILS THE CASE EVEN BEYOND OVERWHELMING PROPORTIONS!
Still, all of the foregoing evidences, ALREADY overwhelming for purposes of arraignment (or even conviction) by any civilized standards, were all accumulated and on the police and court records BEFORE the latest major development in the case, however! But even since then, however, there has developed yet another momentous event whose net result has been to produce yet another new explosion of a bonanza of evidence on the case. In particular, on May 29th 2009, the fearsome leader of the criminal gang that kidnapped the “Innoson three,” who goes by the name Innocent Orji, was finally apprehended by the police, finally ending a 2 years and 2 months state and regional police man hunt. In terms of its significance to the Ogbuawa case at hand, simply suffice it to say that virtually nothing could have done more as to further catapult the quantum of evidence already in police files against the accused persons to a new stratospheric, even unassailable, level, or done more in further corroborating the pre-existing evidence and cementing its credibility for prosecutorial purposes. From several press accounts on the matter, most of which are well confirmed, since capture gang leader Innocent Orji has already made many damning confessions and bombshell revelations (most, if not all, of them on tape and video) of Ogbuawa’s direct role and involvement in the whole Innoson three kidnap event, roundly corroborating key elements of the allegations and evidences pre–existing on the official record against him.
He directly implicates Mr. PIUS O. OGBUAWA, and links him to the gang’s financing and actions in the Innoson three kidnap incident. He has confirmed, directly, as a principal in the events, many of the matters that previously were merely allegations and charges, even if strong ones, and has vitally “filled in the holes” in the pre–existing body of evidence on certain key details in the kidnapping or the alleged Ogbuawa involvement – that his gang was, indeed, the group that was responsible for the kidnap of the now famous “Innoson three,” that the second Chinese victim of the kidnap had died in their custody, and where exactly he had been buried, that Ogbuawa was, indeed, a major financial patron of his gang, and had, indeed, at one time provided his gang a list of 7 other fellow–multi–millionaire businessmen in Nnewi (which included the Chairman of the Innoson company, among others) that he advised them to abduct, that his criminal gang was in fact the group that had the entire South–east of Nigeria under virtual criminal siege in the last 2 years in the orgy of criminal kidnapping and extortion that then prevailed, that Mr. Ikechukwu (Nwachukwu), Mr. Ogbuawa’s in–law, was in fact a member of his extortion gang, etc., etc
What emerges, upon reasonable examination of the facts, is that, in fact, the evidence is clear and unambiguous that there is far, far more than sufficient evidence amassed and ALREADY sitting in the police and court files at least to arraign (indict) Ogbuawa and his follow suspects for a trial on the charge. That, indeed, that question (the issue of sufficiency of evidence to warrant a charge of the case to arraignment) has not really been the issue in earnest in this whole case. That, in fact, as one keen observer of the case, an Anambra columnist who has followed this case very closely for long, Mr. Mike Okongwu, summed it up, the real issue has probably been: “With all these damning allegations against him, if Ogbuawa was a man of little means, would he be walking about so freely [today]. Does the law apply differently for different folks.”? Are the Nigerian authorities, from President Umaru Yar’Ardua, to Attorney General Michael Aondoaka, and Police boss Ogbonna Onovo, really, really honest and SERIOUS about fighting the Number One violent crime of Nigeria of today – the brutal menace of armed robbery, kidnapping and extortion?
The recent lamentation in July 2009 of Farida Waziri, the Chairman of Nigeria’s Economic and Financial Crimes Commission (EFCC), about the slow impact of the work of her office on the war against corruption in Nigeria, and the fact that the existence of a considerable dose of corruption in the Nigerian judiciary seems to be a major factor in not recording dramatic improvements in the nation’s corruption situation, seems immediately to fit so well here. “The effect [of the kind of efforts that agencies like the EFCC makes] is felt only when a man has been sentenced and you see him being taken into prison and he gets to prison and people see it,” Waziri says. But, Waziri adds, instead, what you often see, though, in Nigeria are “people taken to court and they are smiling and waving as if they are political heroes. Meanwhile they are being arraigned for criminal cases and they are waiving like Mandela.” In summary, true, as a practical and constitutional matter, the DPPs and the Federal AG office involved in the current Ogbuawa case technically have the power under the constitutional doctrine of nolie presequi, possibly to discontinue the current Innoson kidnapping case.
So the letter and text of the Constitution reads under Section 174 thereof! However, properly put in its proper context, this must be clearly but emphatically noted, too. That, a major PROVISO of that clause, under subsection (3) therein, is that the Attorney General, “in exercising his powers under this section, …shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.” (Underlined by the writer).
THE ULTIMATE NIGERIAN “TEST CASE” – ARE THE NIGERIAN AUTHORITIES REALLY SERIOUS, SINCERE?
To be sure, nationally, the Yar’Ardua Administration has severally signaled that seriously combating the grave twin crimes of armed robbery and kidnapping, whether by the militants in the Niger Delta, or by professional armed robbers in Anambra state or other states, are its top present national security priority. As for this humble writer, I want, respectfully, to believe, as a patriotic and genuinely interested Nigerian who wants to believe in the current Nigerian leadership, ranging from Umaru Yar’Adua, to Federal Attorney General Michael Aondoakaa, and the new Police Inspector General Ogbonna Onovo, and others, that all actual “public officers” of the Nigerian nation, such as Mr. S. Aliyu of the Abuja DPP office, and Messrs Emeka Okolo and Silas Amon of the Enugu DPP office, or any others in like position in Nigeria, are brutally genuine and serious when they proclaim that they are actually serious about combating, and actually defeating, this most devastating of all violent crimes, the menace of armed robbery and kidnapping. I want to believe that these men (and women) of the DPP office, will work dedicatedly in this case only in a way that would give due “regard to the public interest, the interest of justice and the need to prevent abuse of legal process,” of the Anambra and Nigerian public, as commanded by the Nigerian Constitution! We shall await the October 5th 2009 date.
That is the next adjourned court date, at the Federal High Court, Awka, in Anambra State, before Justice P.F. Olayiwola. The men of the Nigerian Attorney General’s office, through its DPP office of Messrs S. Aliyu at Abuja, and of Emeka Nwokolo and Silas Amon at Enugu, will finally tell Nigeria, as well as the much menaced anxious Anambra population, and the world, particularly the Chinese nation (two of whose nationals had been among the victims of the kidnap, one of whom had died in the kidnappers custody), what EXACTLY they’ve decided about the fate of the infamous “Innoson three” kidnapping case.
Benjamin Anosike, Ph.D.The writer, who writes from New York, USA, is the prolific author of some three dozens of legal texts mostly on topics of American law (and literally a countless number of articles), and an acclaimed legal scholar and expert, frequent writer and commentator on political, economic, social and legal issues.
Read also Yar’adua’s Government; really serious about fighting armed robbery and kidnapping?-Nnewi in Anambra as test case (1)