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Court clears Ibori of graft charges, EFCC kicks

By Hendrix Oliomogbe (Asaba), Lemmy Ughegbe (Abuja) and Gowon Akpodonor (Lagos)   |   18 December 2009   |   3:14 pm  

 

Justice Marcel Awokulehin, after three adjournments, delivered the judgment on the 170-count charge. In the judgment which lasted well over two hours, Justice Awokulehin dismissed all the charges against the former governor.

Consequently, almost eight months after the Federal Appeal Court, Kaduna ordered a fresh trial in the Asaba Court, Ibori walked away a free man, sparking off celebrations among his supporters, family members and other well-wishers in the state and elsewhere.

But the EFCC said the judgment would not stand, vowing to pursue the matter to a logical conclusion.

The parties in the trial which started on April 27 were the Federal Republic of Nigeria versus Ibori, Ms Udoamaka Okoronkwo, Chiedu Ebie, MER Engineering Nigeria limited, IBAINENOX Limited and SAGICON Nigeria Limited.

The fresh trial was ordered by the Court of Appeal, Kaduna in a 21-page judgment delivered on December 19, 2008. The appellate court nullified all proceedings that had taken place before Justice Lawal Shuaibu of the Federal High Court, Kaduna.

Awokunlehin who listed the 170-charge in 13 categories, faulted the former EFCC Chairman, Mallam Nuhu Ribadu for blatantly alleging without proof a $15 million bribery scandal against Ibori.

He said: “The prosecutor (EFCC) must have all the evidence to support the application to quash, to remove the Ibori’s application. Therefore, the application to quash succeeds and hereby quashed. The accused persons hereby discharged.”

The issues on which everything depended, as made out by the Judge were these:

 

    • Whether the EFCC made any prima facie case on any or all the charges.

    • Whether any of the accused or all the accused persons have been linked with the commission of any crime as charged.

    • Whether it is immaterial that Delta State has not complained about any missing money.

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 got from illegal acts or whether any persons was aided by any person to disguise money from an undeclared origin must be proved. 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.

He said: “It is worthy of note that there is no disagreement on the well-defined position of the law. The divergence is how it applies to this case. The judge then ruled that going by Sections 27 and 28 of the Evidence Act, “That an affidavit shall not contain extraneous matters”. He also talked about the ejusdem generis as argued by EFCC counsel, that issues of money laundering could be proved from the transfer of money alone.

“My view is all encompassing. 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 the legal authority sited by EFCC on the ejusdem generis was “unnecessary and inappropriate”. He said that an accused must be sufficiently linked to a crime but that this has not been done here.

On the charge that money was paid into Ibori’s personal account at Guarantee Trust Bank, from Delta State’s account, the judge said that EFCC only attached bank statements showing lodgements made but never showed any crime, and that nobody was questioned over that, not the Delta State official and not a bank official. So, no criminality was showed.

He said: “Apart from the statement of account, I’ve seen no evidence, no statements, and even in the two statements of Ibori, he was not asked to give details about any inappropriate payment into his private account. Nothing was shown pertaining to a crime. The fact of the origin of the money is important to prima facie evidence of a crime. So I have no hesitation to quash this particular charge”.

On the charges that some money was fraudulently paid into Prof. Amos Utuama’s Prime Chambers’ accounts, the Judge said: “I have reviewed the statements of accounts. I have read all the witness statements and those from Prime Chambers. All payments made were official and receipted for, and no payment was made to third parties, and no payment came from a criminal act. Prof. Utuama too was by then not under immunity; yet he was not questioned. Mere payments do not amount to money laundering. However I feel obliged to say that a transfer of money may become an illegal act but such money must derive from illegal acts first. So I rule that the charges are defective. No iota of evidence in the proof of evidence”.

On allegations that money was illegally paid to a travels agency, Travels and Tours Ltd, the Judge ruled that the Delta State official who made the lodgements for the travel tickets showed that he was paying for real tickets and there was no fraud involved, and that EFCC did not contradict him in any way.

On the aspects of the case concerning Ms. Adepimpe Pogoson, the judge said that “bank statements, deposit slips, company registration and incorporation did not in any way implicate Ibori as having anything to do with the company under focus, and the directors of the company were not charged and nobody’s witness statement said anything in opposition. As earlier said in this ruling, the ingredients that some persons must have benefitted, and that those same persons are charged for conspiracy destroys that charge. There is no evidence too that the first accused (Ibori) benefitted from any contract to any company. I have examined the accused person’s bank deposits. There is no contradictory evidence that the second accused was a contractor with Delta State as stated clearly by the accused”.

On the allegation that Ibori attempted to bribe Ribadu, with USD 15 million the judge said: “It is shocking that though the evidence are statements from Nuhu Ribadu, and two EFCC operatives, Ibrahim Lamorde and James Garba to the effect that they collected the alleged money from Andy Uba, yet, Andy Uba’s statement was not collected to show what came from Uba, to show who gave Uba the money and for what purpose. Without Uba’s evidence those of EFCC operatives are worthless evidence”. The judge also noted that though Ibori was questioned on July 4, 2007 by the EFCC, he was not questioned about that bribery allegation, though it was alleged to have happened in Aril 2007, and that curiously too, Ribadu’s statement as well as those of Lamorde and Garba were made on December 12, 2007, a day after Ibori was arraigned in Kaduna court.

On Ibori’s relationship with MER Engineering and money laundering charges against him and the company, the Judge ruled that “evidence proffered are statements of witnesses and statement of accounts. Documents submitted that 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”.

On Ms. Udoamaka Okoronkwo, the second accused, the judge said that the allegation was that money was illegally paid into her account. He said: “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”.

In conclusion the Judge said: “Prosecution failed to show critical collaborative evidence. Thus, I accordingly hold that the prosecution has failed to make a prima facie case in any or all of the 170 charges, so I quash and dismiss all the 170 count charges. So the second point becomes otiose”.

The application to quash the charges was first made by counsel to Ibori, Mr. Austine Alegeh (SAN) last July. When the case came up yesterday before Awokulehin, both the prosecution and the defence lawyers formally adopted the briefs they had already filed. Utuama, the deputy governor, told reporters shortly after the ruling: “I feel vindicated because even though I was attorney general of Delta State, as a lawyer whose chambers is registered the chambers can practise law for financial reward.

“The enemies got it wrong, they thought as a public officer the chamber is also a public officer that cannot undertake the practice of law. That is not the law, the law is very clear to the extent that the chambers being a registered, incorporated chamber, it is a separate entity which can be engaged in practice of law for reward”.

According to him, the verdict is also a lesson to our detractors that when frivolous charges are raised, when they frame up people, God is there to justify and defend them, the judiciary is there to defend them.

He added that the ruling has far reaching implications for jurisprudence and the dispensation of justice in the country, noting, “The implication is that as a public officer all he needs to do if he has a growing concern is to declare it in his asset declaration form, that is all. Of course provided he does not engage in the day to day management of the business, that business can go on and flourish and he is entitled to enjoy the benefits of the proceeds.”

But the EFCC in a statement by its spokesman, Mr. Femi Babafemi titled, “Ibori: This Judgement Can’t Stand,” said: “The decision of Justice Marcel Awokulehin of the Federal High Court, Asaba to quash all the 170 count charges against former governor of Delta State, Mr. James Onanefe Ibori today has not come as a surprise to the Economic and Financial Crimes Commission, EFCC.

“In view of our determination to prosecute this case to a logical conclusion, and our strong belief that this hazy judgment cannot stand based on available evidence we have to prosecute the case, we have instructed our lawyers to immediately file an appeal against Justice Awokulehin’s judgement at a higher court.

“We are convinced that this judgement 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 judgements against the corrupt in our society.”

“This kind of judgement if not challenged is capable of deepening the menace of corruption in our country rather than contributing in any way to the cause of justice which is the basis of sustaining our democratic governance.

“This explains why the leadership of the Commission will leave no stone unturned to ensure that the case is taken to a logical conclusion given the enormity of evidence available to prosecution.”

But Ibori was thankful to all, saying the Rule of Law was thriving in Nigeria

A statement by his media assistant Tony Eluemunor said he was grateful to the Judiciary which has proved that it was “not only the refuge of the common man, but can also protect the so-called big man when untold forces are arrayed against him, as many Nigerians tend to believe that any politician is as guilty as charged”

He equally thanked his legal team and supporters who have stood by him since the case began in December 2007.

“He even also thanked his adversaries, opponents and even outright enemies for he says that he recognises the fact that not everyone will like him,” Eluemunor added.

Ibori’s victory was described by his fellow kinsmen as ‘a vindication of an innocent man’, as thousands of youths, market women and school children celebrated late into the night in Oghara, his home town.

Speaking with The Guardian on phone from Ogharefe, headquarters of Ethiope-West Local Council, the Iyasere of Oghara Kingdom, Uzzi Champion Oboh, said the judgement was a ‘clear proof that Ibori was unjustly oppressed’ by certain people.

According to the Oghara Traditional Prime Minister, Ibori’s victory would play a major role in determining the Money laundering charges against him by the London Crown court. Others who spoke with The Guardian yesterday praised Justice Marcel Awokulehin for his courage, saying that he had brought honour to the Nigerian judiciary system.

It was learnt yesterday that immediately the news of Ibori’s victory filtered into the community, thousands of youths, market women and school children trooped into the streets in Otefe, Ijomi, Ovade, Ogharefe, Oghareki villages and other neighbouring towns of Mosogar, Amukpe and Sapele in jubilation, singing praises to God, just as motorcycle riders and motorists patrolled the town celebrating.



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