The controversy continues in Search of Real James Ibori

Thursday, April 15, 2010

Chief James Ibori

By Olusola Fabiyi

He is not new to controversies. But when the Supreme Court on May 19, 2006 finally laid to rest the allegation that former governor of Delta State, Chief James Ibori, was an ex-convict, he must have heaved a sigh of relief that at last, the battle which started over three years before then had finally come to an end.

Then, two aggrieved stalwarts of the Peoples Democratic Party from his state, Chief Goodnews Agbi and Anthony Alabi, had appealed against the decisions of a lower court and asked the apex court to decide whether Ibori was not the one convicted on September 28, 1995 by an Upper Area Court, Bwari for criminal breach of trust. Not only that, they also alleged in the suit that the former governor was the one convicted in 1995 and that based on this, he should not be eligible to contest the governorship election in the state in 1999 and 2003. The May 19 judgment made it the second time in two years the apex court would be deciding on the matter.

On December 6, 2004, when the case was first decided by the court, the court held that one James Onanefe Ibori was convicted on September 28, 1995. But the court did not say whether it was Chief James Onanefe Ibori, the governor of Delta State that was convicted by the Upper Area Court. The Supreme Court in its judgment in 2004 ordered that the case should be tried afresh by a High Court. At the High Court of the Federal Capital Territory, Mallam Awwal Yusuf, the Magistrate who claimed to have tried Ibori in 1995 at the Upper Area Court was called to give evidence. In his evidence, he said he tried Governor James Ibori, the governor of Delta State, for criminal breach of trust in 1995. He said he convicted Ibori in criminal case no. CR-81-95. But the Presiding judge at the High Court, Justice Hussein Muktar, dismissed the suit on the ground that there were inconsistencies in the evidence of the prosecuting witness (Awwal Yusuf).

Not satisfied with the decision of the High Court judge, Agbi and Alabi filed an appeal against the judgment at the Court of Appeal. The appeal was also dismissed at the Appeal court because Yusuf was not consistent in his evidence.

At the Supreme Court on May 19, 2006, Justice Dahiru Musdapher who read the lead judgment said, ”Although as I mentioned at the beginning of this judgment, what is before us is the narrow issue of whether the appellant (Agbi and Alabi) have been able to establish the identity of the 4th defendant (Governor James Ibori) as the person convicted by the Bwari Upper Area Court, yet any judicial officer involved in this determination will notice an unusual portion of alleged trial at Bwari Upper Area Court.

”Though it cannot be over emphasised; what is before us is not an appeal against the decision of the Upper Area Court, the irregularities cannot be ignored. For example: The First Information Report with which an accused person is arraigned appears not to exist.

”The trial was purportedly held under section 157 of the Criminal Procedure Code law of the former Northern Region of Nigeria, applicable to FCT, Abuja whereby an accused person is summarily convicted. The procedure does not take half a page in the court‘s record. The accused in this case purportedly admitted the First Information Report, but the record of proceedings ran to almost 10 pages. The pages of the proceedings in the record book are not continuous as would be expected of a trial not taking 10 minute, but is found on many pages covering proceedings of several days. Two Area Court judges sat on the matter but only P.W. 1 signed the record on that day, the other judge signed many days after.

”On the whole, the plaintiff‘s case was built round the evidence of P.W.1, Mallam Awwal Yusuf. The evidence of this man has left much to be desired and the trial High Court Judge totally disbelieved him and rightly in my own view, made some caustic remarks against him.

”This appeal revolves round the concurrent findings of facts by both the trial court and the Court of Appeal. The appellants have completely failed to convince me that the findings are perverse or erroneous or that they were not a product of proper appraisal and the evaluation of the evidence to warrant a disturbance by this court. I accordingly dismiss this appeal and affirm the decisions of the lower courts.”

If he and his supporters had thought that the battle was over, they were wrong. This is because even as a sitting governor, there were those who perceived him as being corrupt and had therefore expected the Economic and Financial Crime Commission to move against him immediately he left office and therefore lost immunity.

However, that did not come to be as he was said to be one of those who sponsored the election of President Umaru Yar‘Adua, which conferred on him the status of a kingmaker. But in the early morning of Wednesday, December 12, 2007 the Mallam Nuhu Ribadu-led EFCC trailed Ibori to the Kwara State governor‘s lodge, Abuja where he was reportedly taking refuge and arrested him. The commission accused Ibori of abuse of office, corruption and money laundering. Sources at the Operations Unit of the commission had informed our correspondent that the former governor had been trailed from his Protea Hotel room, in Asokoro area, where he had been since he arrived Abuja the previous day. Ibori was later arraigned the following day at the High Court in Kaduna, on a 103-count charge for corrupt enrichment, abuse of office and money laundering, among other offences.

Ibori has been on the run from the London Metropolitan Police where he is wanted for corruption and money laundering activities. Efforts by the London Met to prosecute him had been stalled by perceived non-cooperation by the Federal Government, leading to insinuations that he is enjoying government‘s protection. It was learnt that he had been in Abuja to meet with President Umaru Yar‘Adua, although there was no confirmation that the meeting held. His arrest by the EFCC coincided with the departure of Yar‘Adua for a state visit to the United States.

The case however suffered a setback when the Court of Appeal sitting in Kaduna transferred it to Asaba, Delta State where it said the alleged offences were committed. This irked some elders from the state led by a former Minister of Information, Chief Edwin Clark. They alleged that there were fears that the Federal Government was not serious in prosecuting Ibori. Clark, who spoke with newsmen in Abuja on the matter, deplored the way the government was going about the Ibori case, which was then pending at the Federal High Court, Asaba.

He also said it was wrong for the presiding judge of the case, Justice, Marcel Awokulehin, to sit over the case when he had not favourably responded to a query allegedly issued to him on the case. He said he had written a letter to the then Chief Justice of Nigeria, Justice Idris Kutigi, on the matter, saying that the judge should not be allowed to handle the matter.

In the letter, a copy of which was obtained by our correspondent, Clark who said he had been in legal practice for 44 years, called for the removal of Awokulehin from going ahead with the case. He wrote, ”I read from the internet your Lordship‘s query Ref. No. NJC/FHC/DM/111/830 of 21 October, 2009 directing the above named judge to explain within the next two weeks, allegation of gross misconduct in the case FRNVs James Ibori and Anor which is about the 4 of November, 2009. I respectively submit that it is not in the interest of justice and fair play for the same judge whose reply to the charges of gross misconduct has not been investigated and cleared of the grave allegation to sit in court over the case on the 6 of November, in fact two days after the answer to the query.

”I humbly submit that, for a judge of a High Court in Nigeria to write directly to a judge in London without reference to the hierarchy of the judiciary in Nigeria or through the Federal Attorney-General under the Mutual Legal Assistance Agreement Treaty is tantamount to a grave miscarriage of justice. I further submit my Honourable Justice that the circumstances surrounding the creation of the Asaba Division of the Federal High Court and the appointment of the trail judge are of great concern to our people whose properties were allegedly looted by the accused, Chief James Ibori.”

He further said in his petition that the controversial judgment of the Kaduna Court of Appeal presided over by Justice Amina Augie that the Ibori case should be transferred to Delta State or the nearest court where the offences were alleged to have been committed was no doubt, ”pre-conceived or a deliberate act of omission on the part of the EFCC and the AGF not to have appealed the controversial judgement.”

Clark also alleged that the new Federal High Court was established because of Ibori, adding that the court was acquired by the Delta State Government for the Federal Government.

He said, ”Every attempt is being made by various organisations or members of the Federal Government to thwart the trial of Ibori from taking its normal cause. He was charged to court in Kaduna with 173 charges ranging from money laundering, forgery, stealing, and bribery and so on.

”Remember that the Attorney-General of the Federation and Minister of Justice, Chief Michael Aondoakaa (SAN) criticised the judge who handled the case of Ibori in the Federal High Court, Kaduna.

”He said that it was improper and unjust for the judge to have remanded Ibori in prison custody for 64 days when the offences he allegedly committed was bailable. That was the beginning of the turn of events.”

He wondered why the case involving some other former governors were still going on, even when they were being tried outside their states.

These former governors included Chief Orji Kalu, who was charged in Abuja for offences committed in Abia State, Dr. Chimaroke Nnamani was charged in Lagos for offences he allegedly committed in Enugu State, Ibori was charged to court in Kaduna for offences he allegedly committed in Delta State; Mr. Ayodele Fayose was charged in Lagos for offences he committed in Ekiti State; Chief Lucky Igbinedon was charged to court in Enugu State for offences he committed in Edo State. The case of Senator Saminu Turaki for offences he allegedly committed in Jigawa State is still going on in Abuja.”

But against the spirit of fairness as being preached by Clark and others, Awokulehin went ahead with the case and delivered judgement on December 17, 2009, discharging the accused of all the 170 count-charge against Ibori. Of course, the judgment elicited comments from across the country, including the prosecution, the EFCC, which said the judgment would not stand. The commission, in its reaction said the judge‘s decision did not come to it as a surprise.

According to a press release by the commission‘s Head of Media and Publicity, Mr. Femi Babafemi, the commission said there was no way the judgment would stand and vowed to appeal the ruling. It said the judgment, if allowed to stand, was capable of encouraging corruption in the country.

The statement read, ”The decision of Justice Marcel Awokulehin of the Federal High Court, Asaba to quash all the 170 count charge against former governor of Delta state, Mr. James Onanefe Ibori today has not come as a surprise to the EFCC. We are convinced that this judgment cannot stand especially at this critical time in our nation‘s history when the judiciary is being hailed for rising to the challenge of delivering fearless judgments against the corrupt in our society.”

While the commission is still battling with the appeal, some prominent leaders from Delta State operating under the aegis of Delta State Elders, Leaders and Stakeholders Forum have sent a fresh petition to the anti-graft agency asking it to investigate the former governor again. The elders demanded to know if Ibori was being treated as a sacred cow. The petition, which was dated March 8, was addressed to the commission‘s chairman, Mrs. Farida Waziri. They demanded the commission to find out whether it was right to use the state government‘s shares to obtain N44b private loan from a bank.

According to them, they said there was evidence that shares worth N528.010m in Oceanic Bank belonging to Delta State Government was used to guarantee over N44b granted Ascot Offshore Nigeria Limited by Intercontinental Bank plc.

It was this fresh petition that has made the anti-graft agency to declare Ibori wanted. But the former governor is alleging political persecution, wondering why he would be declared wanted few hours before he received a formal invitation from the commission. This notwithstanding, Chief Kayode Ajulo, lawyer to Clark said that what was necessary was for Ibori to provide answers to salient questions on whether he actually used Oceanic Bank shares belonging to the state government as collateral to Intercontinental Bank for the benefit of Ascot Offshore Nig. Limited, his private company and if he also authorised the sale of the shares to liquidate the loan to Intercontinental Bank. Perhaps, when Ibori chooses to answer these questions and others, the controversies will cease. For now, the drama seems to just be unfolding.

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