James Ibori: "Innocent" in Nigeria, guilty abroad

2012-03-04
NATIONAL MIRROR Newspaper- Ise-Oluwa Ige


Some of Ibori s many legal battles in the last 22 years

In 1991, while working in a hardware store in the London suburb of Nearsden, he was caught by his employer allowing his wife to walk through the till he was manning without paying for goods. He was charged to court alongside his wife and both later pleaded guilty at Isleworth Crown Court and got fined. In 1992, he was also convicted for possession of a stolen credit card which had £1,000 spent on it and was also fined. All the Offences, trials and convictions of Ibori occurred in the United Kingdom. The records are still intact and the identity of the Ibori convicted is not in doubt, up till now.
Charges against him in Nigeria

While he was in Nigeria, a man by James Onanefe Ibori was also charged before an Upper Area Court in Abuja, tried, convicted and sentenced in 1995 after pleading guilty to a two count charge of negligent conduct and criminal breach of trust. The record of the proceedings at the Upper Area Court in Abuja did not matter until sometimes in 2003 while Chief James Onanefe Ibori was planning to recontest election into the Delta Government House as some of his political opponents exhumed the document. Two of his kinsmen and members of his party, the Peoples Democratic Party (PDP), Messrs Godnews Agbi and Anthony Alabi filed a suit at the registry of the Abuja high court sitting in Gwagwalada seeking an order to disqualify Ibori from contesting the 2003 gubernatorial poll in the state.

They relied on section 182 (1) (e) of the 1999 constitution which provides:  No person shall be qualified for election to the office of Governor of a state if within a period of less than ten years before the date of election to the office of Governor of a state, he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the code of conduct.



Among the documents exhibited to nail Chief Ibori was the certified true copy (CTC) of record of proceedings of the Upper Area Court, Bwari carrying the names of one James Onanefe Ibori in a criminal matter with registration number CR-81-95.The CTC indicated that the James Onanefe Ibori was convicted and sentenced on September 28, 1995. They claimed that the Chief Ibori who was seeking re-election was the same James Ibori that was convicted in 1995. They therefore invited the court to hold that Chief Ibori was caught by the provisions of section 182(1) of the 1999 constitution and therefore unfit to con test the election.

Although the plaintiffs named the Peoples Democratic Party, its erstwhile Chairman, Chief Audu Ogbeh and its then Secretary, Chief Vincent Ogbulafor as defendants in the case, Ibori who was not joined as a defendant in the suit because of his constitutional immunity waived his right to defend the case. According to him, if anybody answered by chance, the same name with him as appeared in the 1995 judgment of the Bwari Upper Area court, he said they could not be the same person.

He also said that assuming without conceding that a James Onanefe Ibori was convicted, he said, definitely it was not himself. He said that even if he was the one convicted which he denied, that the conviction would not disqualify him from being a governor under section 182 (1) (e) of the 1999 constitution because the proceedings of the Upper Area Court, Bwari which contains the trial, conviction and sentence of James Onanefe Ibori on September 28, 1995 was not credible.

He expained that he had personally investigated the controversial 1995 Bwari judgment which findings pointed to the fact that his names were superimposed on the court paper by his political adversaries. He said his investigation revealed that the man that was indeed convicted in the controversial compound charge of negligent conduct and criminal breach of trust with registration number CR-81-95 was one Shuaibu Anyebe and not James Onanefe Ibori He therefore urged the court to hold that the proceedings of the court, being exhibited by his kinsmen was a product of fraud, illegality, a nullity and therefore void, ab nitio. Although Ibori had been convicted twice in UK, he still told the court vide a sworn affidavit that he was never convicted in his life.

A lengthy litigation

The matter was ferociously litigated from the Abuja high court through the Appeal court to the Supreme Court with all the judges involved in the case entering various verdicts. For instance, the Abuja high court, in its own wisdom, examined the certified true copy of the Abuja Upper Area Court proceedings, took evidence from parties and declared that the document did not indicate that Ibori was convicted but the court agreed that the Ibori whose name appeared on the document was sentenced. The verdict of the court, according to the plaintiffs, was laughable. They argued that there could be no sentence without conviction and that the court deliberately chose its diction to help Ibori beat the provision of section 182(1) (e) of t he 1999 constitution which emphasized conviction in the event the Ibori on the court records is the same Ibori who is the governor.

Upon appeal to the Court of Appeal in Abuja, the appellate court disagreed with the trial court to say there was conviction based on the exhibited certified true copy of the record of proceedings of the Bwari Upper Area Court. But the appellate court however refused the invitation to stop Ibori from contesting the 2003 poll, saying the matter should go back to the high court for identification trial to establish whether indeed Governor Ibori is the same person who was convicted in 1995. Ibori was uncomfortable with the position of the Court of Appeal and he came before the Supreme Court for pronouncement on the exhibit. There, a full court of seven justices of the Supreme court including the Chief Justice of the Federation, Chief Muhammad Lawal Uwais, heard the case and affirmed on February 6, 2004 that a James Onanefe Ibori was convicted.

But the apex court said that evidences were not led at the trial court on the identity of the James Onanefe Ibori that was convicted. The verdict of the Supreme court on the genuity of the conviction came exactly one year, three days after the case was initiated at the Gwagwalada high court, Abuja. The apex court, in its judgment, however ordered retrial in the case, as earlier did by the court of appeal on April 16, 2003, with a view to identifying whether the James Onanefe Ibori that was held convicted is the same Chief James Onanefe Ibori serving as Governor of Delta state. But some of those battling the governor in hiding alleged that Governor Ibori offered a mouth watering bribe of N250million to justices of the apex court that sat on the case to deliver the favorable judgment. The Supreme court which affirmed that one James Onanefe Ibori was convicted also ordered that fresh pleadings be filed at the high court to resolve the issue of identity.

This brought both parties before Justice Hussein Murhktar of the Abuja high court sitting at Wuse, Zone 5 who gave an order on April 21, 2004 that the plaintiffs should file its statement of claim within 30 days. In obedience to the directive of Justice Murhktar, the plaintiffs ( the two PDP members) filed a 16-paragraph statement of claim dated May 19, 2004 while Governor Ibori responded 30 days later by filing his statement of defence dated June 18, 2004. PDP and its two principal officers also filed their statement of defence on June 28, 2004 . Late Chief Gani Fawehinmi, (SAN) led a battery of lawyers to prosecute the case for the plaintiffs while an array of Senior Advocates of Nigeria (SANs) led by Chief Milton Paul Ohvohwhoriole defended Governor Ibori. One lawyer, Joseph Obialor represented PDP and two of its principal officers in the case.

At trial, late Chief Gani Fawehinmi listed about eight witnesses including the National Population Commission, the Independent National Electoral Commission (INEC) among others but called two of them to give evidence in the case, including Justice Awwal Yusuf that convicted the James Ibori in 1995 and the Chief Judge of the Abuja high court, Justice Lawal Gummi who was not present in person. Ganiyu applied for and was issued both subpoena duces tecum and subpoena Duce testificandum on both NPC and INEC to tender their records in court to show that there is only one James Onanefe Ibori in Nigeria but he later abandoned the subpoenas after the judge that convicted Ibori insisted that the Ibori he convicted in 1995 was the same Ibori in the Delta Government House.

Ibori's defence

Governor Ibori also listed three witnesses but called only two including the chief registrar of the Abuja high court and a legislator, Hon Bala Ngilari who dismissed Justice Yusuf as a pathological liar. The Inspector-General of Police, Mr Tafa Balogun was to give evidence in favour of Ibori after he had allegedly prepared an interim police report exculpating him. Balogun was reported to have allegedly collected heavy money from Governor Ibori to do the report. The deal reportedly leaked and the Presidency was said to have invited Tafa to Aso Rock where he was threatened with public disgrace, prosecution and dismissal.

The Police, indeed, became reluctant to give evidence for Ibori as only the subpoena duces tecum issued on the IGP was obeyed, ignoring the subpoena duces testificandum. The drama that ensued was that the document that was produced in court by the police entitled,  Police Final Report indicted Governor Ibori. Nevertheless, the Abuja high court dismissed the case against Ibori, saying he was not sufficiently identified.

According to the judge,  although the surname, the middle name and the first name of the convict on the record of proceedings in CR-81-95 are the same with that of the Delta state governor, such coincidental circumstance may not be enough to conclude that Governor James Onanefe Ibori is the same person convicted in the charge  This is more so when me mory of the principal witness of the plaintiffs, Justice Yusuf has been seriously faulted, even in events that recently happened . Justice Hussein Murhktar who delivered the judgment was so disorganized on the day of judgment, reading incoherently from different sheets of paper. Chief Gani Fawehinmi (SAN) who almost wept in court after the judgment was delivered went on appeal on behalf of his clients. But both the Court of Appeal and the Supreme Court upheld the judgment of the trial court and Ibori continued in office till May 29, 2007.

Integrity of judiciary threatened

The verdicts of the trial court, the Court of Appeal and the final judgment of the Supreme Court on the matter almost ruined the judiciary following allegations of open corruption against all justices that participated in the case. For instance, a non-governmental organisation, operating under the name and style of Derivation Front (DF) accused the Chief Justice of Nigeria, Justice Uwais of collecting a mouth-watering bribe of N250million, N5billion and another US$3.8 million naira from the serving Governor of Delta state, Chief James Ibori at separate times, to enter judgment in his favour. The monies, according to the group, was to influence the decision of the Supreme court in favour of the governor whom two Nigerians, Messrs Goodnews Agbi and Anthony Alabi wanted the court to declare as the one and the only person that was convicted of a criminal breach of trust some years back.

Although CJN Uwais denied the bribery allegation before reading the judgment of the apex court, he however told the world that he was willing to submit himself for investigation over the matter. Many Nigerians, especially those in the legal world who were of the view that the CJN was impeccable in character and conduct though sympathised with him, few of them however blamed him for joining issues with the group that accused him. They said he ought not to have broken the tradition of the bench to respond to the allegation.

They were of the view that he should have allowed the Supreme Court registrar to handle the matter. But the former World Court judge, Prince Bola Ajiboa (SAN) felt differently. He said when one was faced with such a grievous allegation, reactions of the affected person would differ from one individual to another. He was of the opinion that there was nothing sacrosanct about how an individual should react to such an issue. He alluded to the Shakesphares to underscore the magnitude of such an a llegation and why one should not treat it with levity or leave such reaction in the hands of a third party.

According to him,  Shakesphares spoke on the importance of good name through Iago, one of the major characters in one of his several plays ---Othello, saying: good name in men and women, dear my lord, is the immediate jewel of their soul. He who steals my purse steals trash. It was mine and it is his and has been slaves to thousands. He who robs me of my name robs me of that which enriches him not but makes me poor indeed According to Prince Bola Ajibola,  for anybody to have accused the CJN of corruption, I think if it is unfounded, that must be a very callous, serious and irresponsible thing to do he said.

But another renowned legal practitioner and one-time chief judge of Lagos state, Justice Samuel Omotunde Ilori looked at the matter from a different angle. He was of the opinion that the entire allegation was nothing but sheer rumour-mongering until it was proven. He however quickly added that except and until those who peddle false rumours about judicial officers were made an object of ridicule themselves, rumour-mongering which is gradually becoming a trend and most dangerous phenomenon threatening the integrity of the judiciary would continue unabated.

Although the allegations of bribery against the judiciary, at least up till date, could not be established over the ex-convict case involving Ibori, the integrity of the judiciary was however terribly discolored. In fact, few weeks after the final judgment in the case which sprouted the dangerous allegations, two lawyers Messrs Ephraim Duru and Emefor Etudor also ruptured the jelly-like awesomeness surrounding the exalted Office of the Chief Justice of Nigeria and the Supreme Court again as they came before the body of the apex court and accused Justice Muhammad Lawal Uwais of corruption. In fact, they not only relied on the allegation in the Ibori ex-convict case, they also mouthed separate ones which could not be proved to disqualify him from hearing their case.

A justice of the Supreme Court who later became the Chief Justice of Nigeria (CJN), Justice Idris Kutigi though threatened the two lawyers with imprisonment, they stood their ground and were willing to enter the dock to give evidence. The matter became complicated when the outgoing CJN, Justice Uwais granted interview again on the matter, alleging that all the dangerous allegations were being sponsored against him by his deputy, Ju stice Alfa Modibo Belgore. The judiciary was at the time burning and it was President Olusegun Obasanjo who invited the two most senior jurists in the country to Aso Rock to settle the issue between them. Even though the two lawyers, Mr Moses Odiri and Chief Andrew Oru who came out to say they were behind the sundry allegations against the CJN over the ex-convict case were later tried and disbarred, there was no case involving Ibori afterwards before Nigerian courts without imputation of bribery.
Attacks from the homefront

Although Ibori could not be stopped, his kinsmen and brave members of his party who felt he was plundering the treasury of the state would not allow him to finish his term before they started agitation to get him prosecuted. In 2006, for instance, three community leaders in Delta state instituted a class action on behalf of the Delta State Elders Forum before a Federal high court sitting in Abuja to compel the Economic and Financial Crimes Commission (EFCC) to probe him (Ibori) over alleged illegal diversion of over N120billion public funds into private pockets. The three community leaders and indigenes of Delta state were Elder Godsday Orubebe, Chief Godwin Ogbetuo and Chief Sunday Iyawa. The plaintiffs in the suits said they had facts and figures with sufficient documentary evidences and witnesses to prove their allegations against the duo of Ibori and Uduaghan.



The alleged looted money, according to the plaintiffs, were meant for the capital development but were diverted into private pockets.The application to procure the mandamus order was filed by the Chambers of Adegboyega Awomolo (SAN) and Kayode Ajulo. Named as defendants in the case were the Chairman of the EFCC, EFCC itself, Minister of Finance, Governor of Central Bank of Nigeria, Accountant General of the Federation, Attorney-General of the Federation, Chief James Ibori, Attorney-General of Delta State, Dr Emmanuel Uduaghan and the Hon Speaker of Delta State. In a comprehensive affidavit accompanying their application for the order of mandamus, the plaintiffs gave a graphic details of how the state treasury was looted by the duo of Ibori and Dr Uduaghan as the Secretary to the State Government between 2004 and 2007 with impunity.

Specifically, the applicants averred:

1.That in the year 1999, a total sum of one billion , four hundred and fifty seven million, six hundred and five thousand, six hundred and sixty Naira was the amount diverted , looted , unaccounted for and illega lly misused.

2. That for the year 2000, a total sum of five hundred and four million, seven hundred and eighty thousand, two hundred and ninety three Naira was diverted, unlawfully looted, unaccounted for and illegally misused.

3.That for the year 2001, a total sum of ten billion, seven hundred and eighty three million, two hundred and sixty six thousand, five hundred and forty two naira, was diverted, unlawfully appropriated and unaccounted for.
4. That for the year 2002, a total sum of three billion, eight hundred and fifty two million , two hundred and twelve thousand , two hundred and fifty eight naira , was unlawfully diverted, looted and misappropriated.

5.That for the year 2003 a total sum of eight billion, nine hundred and sixty two million, nine hundred and sixty four thousand eight hundred and eighteen naira was diverted, misappropriated and unaccounted for by the 7th 9th respondents;

6. That for the year 2004, a total sum of twenty billion, seven hundred and eighty two million, eight hundred and ninety five thousand three hundred and eleven naira was diverted, misappropriated and unaccounted for by 7th 9th respondent. The mandamus order was eventually issued compelling the EFCC to probe Ibori's tenure. But on May 29, 2007, after Ibori stepped down as the governor of Delta and lost his cloak of constitutional immunity, the EFCC developed cold feet. The Attorney-General of the Federation, Chief Michael Kaase Andoakaa (SAN) stood in the way of EFCC from acting.

But the Chairman of EFCC, Malam Nuhu Ribadu who was not comfortable with the stance of his boss and Attorney-General smuggled unprocedurally documents incriminating to the London Police to investigate and prosecute Ibori if he would not be allowed to do his job in Nigeria. The insistence by Ribadu to see to the prosecution of Ibori led to an institutional fight between the Office of the Attorney-General of the Federation and that of the EFCC. But while Andoakaa (SAN) was busy with his shenanigan in Nigeria, the Metropolitan Police had acted on the incrimiating documents sent to it on Ibori to confiscate his UK asset worth £35m.



But when the Crown Prosecutor of the Fraud Prosecution Service CPS London, David M. Williams had, under the Mutual Legal Assistance Agreement (MLAT) between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Federal Republic of Nigeria, requested for evidence from the Attorney-General to establish that the controvers ial $35million assets were proceeds of crime with a view to confiscating it.

This was delayed. Late President Yar' Adua had directed both the Attorney- General of the Federation, Chief Michael Aondoaka (SAN) and all relevant anti-graft agencies particularly EFCC to cooperate with UK on the matter. But instead of Andoakaa (SAN) cooperating with the London Police to fight corruption, he had, vide a letter dated November 12, 2007, turned down the UK request for evidence to establish before the London court that indeed the controversial assets allegedly belonging to Ibori and already confiscated on the order of the court were illegally acquired.

He argued that the request breached the legal procedure for investigation of offences that violate Nigerian and British laws. In a separate powerful memo to late President Yar' Adua who had earlier directed cooperation with the UK, Andoakaa (SAN) had given a detailed reason why he withheld his consent to the request by UK to prosecute Ibori before the London court. Specifically, the Attorney-General of the Federation said:  Article 3 of MLAT defines the central authorities in each country. 

For the United Kingdom of Great Britain and Northern Ireland, the central authority to make a valid request for mutual legal assistance is the Secretary of State for Home Department while for the Federal Republic of Nigeria, it is the Attorney-General of the Federation The present letter of request (MLAT REQUEST) originated from one David M Williams (Crown Prosecutor) of equivalent rank with a state counsel in Nigeria.

This makes the MLAT incompetent as not having originated from the competent authority, he said, adding:  The present request fails to outline the criminal allegations in respect of which the assistance is sought but instead requests for a statement from a senior officer of EFCC  fully outlining the criminal allegations The MLAT is also too wide as it seeks to investigate Shell, NNPC, PDP and several oil companies.  The Metropolitan Police's statements in the restrain proceedings make copious references to investigations and co-operative efforts between the Metropolitan Police (UK) and the EFCC (Nigeria) but fail to show how these investigative efforts have complied with MLAT  Plainly, such information has been passed to the Metropolitan Police by the EFCC not pursuant to the MLAT. As such, this information can never be used in evidence unless it is obtained via the MLAT process.

While it is desirable to prosecute and f reeze assets of any person involved in corrupt practices, all agencies and parties to the MLAT are not allowed to carry out their work or duties so as to undermine due process and the authority vested in Article 3, he said. Besides, he added,  the evidence passed by the EFCC to Metropolitan Police includes statements made by persons under caution in Nigeria and the consent of these persons to utilize their statements in the UK was not obtained. 

Some of these statements are not even signed by the alleged makers. This evidence, if challenged and thrown out in court would create an impression that the Nigerian government supplied inadmissible evidence to frustrate the matter , it went on and on. After rolling a big hurdle on the path of Ibori's trial in London, Andoakaa (SAN) who had subdued the leadership of EFCC reportedly prepared an alleged watery and useless 170-count charge against Ibori to douse the public outcry over his non prosecution. Expectedly, the trial did not last before all the charges were quashed.

First, the trial which began in Kaduna suffered a setback after Ibori's lawyer and President of the Nigerian Bar Association (NBA), Mr Joseph Daudu (SAN) raised the issue of territorial jurisdiction and forum convenience According to Ibori, if he should be tried at all, the proper venue should be Delta State where the alleged Offences took place and not Kaduna. He also said that it would be cheaper and convenient for him to defend the case in Delta where his witnesses were based. The matter had to be transferred to a Federal high court in Asaba where the case was eventually thrown out in 2009 on the account that the charge was fundamentally defective and incompetent.

Although EFCC went on appeal, nothing meaningful may come out of the case because it was reported to be watery and deliberately so. But after the case against him was thrown out, efforts were made to extradite Ibori to the UK to face a fresh trial. Specifically, Aondoakaa, ruled out the possibility of endorsing the fresh criminal trial, offshore, for James Ibori over the same offence for which he is being prosecuted in the country. He said doing that with regards to his case or anyone else would amount to double jeopardy. He said no Nigerian, whether high or low, would be allowed to be tried for the same criminal offence twice.

Notwithstanding the clear position of Andoakaa (SAN), EFCC re-opened the case and procured a warrant of arrest at an Abuja high court to apprehend Ibori A ttempts were however made on April 20, 2010 to rearrest Ibori in his hometown in Oghara in Delta State but his supporters attacked the police, hinging their resistance on a status quo order procured by him on April 19, 2010 at a Federal high court. Ibori however escaped to the escravos where he fled the country for Dubai. But on May 14, 2010, or thereabouts, after the death of President Yar' Adua and after the removal of Andoakaa (SAN) from office, Ibori was arrested in Dubai, United Arab Emirates where he was later extradited to the United Kingdom in 2011 where he is presently facing trial at a London Southwark Crown Court. The British Police had accused him of stealing $250million during his tenure as governor of Delta State.

A statement by Metropolitan Police said Ibori used the money to buy lavish houses in London and Johannesburg, a fleet of armored Land Rovers and a $20million private jet Although he earlier pleaded not guilty to the charge preferred against him in London court, he changed his plea on February 27, this year to that of guilt in a 10-count charge of laundering $250million (N37.5billion) and conspiracy to defraud.

According to Paul Whatmore of the Metropolitan Police Proceeds of Corruption Unit, Ibori's guilty plea capped an inquiry which began in conjunction with Nigeria's anti-corruption investigators in 2005 He is due to be sentenced on April 16, this year by Justice Anthony Pitts. The news of his plea of guilt was celebrated by both local and international media. Although his loyalists at home have lashed out at the media for allegedly blowing the news out of proportion, they argued that Ibori never pleaded to counts of corruption but money-laundering.

But Nigerans said they are not fooled because the distinction being drawn by his loyalists between corruption and money laundering is akin to the distinction between six and half a dozen. Although the success recorded by the UK in getting Ibori to plead guilty to the money laundering charge is still being celebrated in Nigeria, analysts have turned heat on the Nigerian judiciary which they claimed is corrupt and needs urgent overhauling.

The argument is that since 2003 when the many battles of Ibori started in the Nigerian courts, no judge has substantially ruled against him. An Abuja-based lawyer, Mr Jeff Ejikonye, said that even when efforts were made between 2003 and 2005 to establish that Ibori was an ex-convict based on the 1995 proceedings of an Upper Area Court in Bwari, all Nig erian courts from the trial high court, the intermediate appeal court to the Supreme Court were reluctant to hit the nail on its head. Turner Ogboru, one of Ibori's critics also told Sunday Mirror on the premises of the Supreme Court, last Friday after losing the bid to sack the incumbent Governor Emmanuel Uduaghan from office that he was not surprised with the judgment he got from the apex court. 

After all, our courts including the Supreme Court told us here that James Onanefe Ibori who was convicted by a Nigerian court in 1995 was not sufficiently identified as the same James Onanefe Ibori who was pretending to be governor of Delta state even when the judge that convicted Ibori came to court to say the convict was the same person in the Government House.  It was a simple and clear case but our courts looked elsewhere when it mattered.  Even though our courts in Nigeria could not sufficiently identify Ibori as ex-convict, a London court has, he told Sunday Mirror.

Analysts though apportioned blame to both the Nigerian Police and the EFCC that jointly investigated, and prosecuted the case on one hand and the Attorney- General of the Federation, there were imputations of bribery against the judiciary. It is though curious that none of such cases against Ibori by his prosecutors or political opponents was won even when the same material facts were used in a foreign jurisdiction to secure his conviction.





 

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