IBORI: All Charges Quashed, Ex Governor, Associates, Discharged And Acquitted

CHIEF JAMES IBORI.

Journalists Barred From Court Proceedings

Asaba (THEWILL) - A Federal High Court in Asaba, the Delta State early Thursday quashed the 170 Count Charges preferred against Chief James Ibori and associates by the Economic and Financial Crimes Commission (EFCC) over alleged money laundering and other financial crimes. 

Justice Marcel Awokulehin while delivering the controversial judgment that lasted for two hours ruled that the prosecution, EFCC was unable to establish a prima facie case against the accused persons, because there were no substantial facts and evidence to establish their cases.

However, while the proceedings lasted, majority of the journalists were prevented from entering into the courtroom as over one hundred stern looking security operatives barricade the gate leading into the court building, while other court visitors that were allowed in were frisked with metal detectors before being allowed entrance.

As early as 7: 55 am, the entire building housing the court premises was taken over by political associates and supporters of Ibori while officials of Delta State government had taken up strategic and vantage positions in the crowded courtroom that can pass for a modern seating room.   

On four occasions, Justice Awokulehin had defered ruling over the application by Ibori, asking the court to quash the charges brought against him because of lack of evidence, saying ‘ I would rather stay on the side of caution than rush judgment.”

Justice Marcel Awokulehin, while dismissing case, said  “though the Money Laundering Act of 2003 and 2004 is linked to the proceeds from illicit drugs and criminal acts but that the generic rules are not applicable to section 14(1) of the Act”.

He said the “rule can only matter where there are general words following particular and specific words, and that the general words should be construed and confined to the specific words.”

Justice Awokunlehin further posited that investigations into the foreign banks revealed that the said amount that was alleged to have been laundered into the foreign bank appears to be false because the said account was found to be in deficit.

Earlier one of Ibori’s lead counsel, Mr. J.B Daudu (SAN) while asking the court to quash the charges said, “My Lord, we have an application for accelerated hearing of our motion to quash the charges. Our motion is already before you, their (EFCC’s) reply is in and we have even filed our reply on point of law to the respondent’s written address. So all our grammar concerning the motion is before My Lord, so it will just take two or three minutes for me to make a few points to put matters in order. We believe we can adopt our written addresses today since we are all already in Court”.

Replying, Mr. Ibrahim Isiyaku SAN, EFCC’s lead counsel quoted section 19 (1) 2 (B) of the EFCC Act of 2004 which recommends accelerated hearing for EFCC cases. He said his team had received the motion for accelerated hearing filed by Ibori’s lawyers and “we are ready to proceed with the case”. Both prosecution and defence counsel agreed to an accelerated hearing, having a hearing before the earlier adjourned date of 26^th October 2009, as some of the Senior Advocates of Nigeria involved in the case, would be otherwise engaged that day and would be forced to be absent from court. 

Daudu, SAN then proceeded to argue his case “that the motion to quash the case was dated 28 July 2009 and was filed the same day, and the application was brought pursuant to the inherent powers of this High Court. As it appears on the face of it, it is for the quashing of all the 170 counts and to terminate all criminal proceedings against the accused persons”. Giving his reasons why the case should be quashed, Daudu, SAN said, “no prima facie case has been established against any of the accused persons and none of the accused persons have been charged even with any act of criminality.”

Tracing the history of the filing of the motions, Daudu said his team filed a written address on 4^th August 2009, to which the EFCC filed a reply on 17^th August 2009 and to which his team filed a reply on points of law dated 6^th October 2009, and “we humbly adopt both the written addresses and the reply on the points of law”.

Daudu said on points of law that “This is not a corruption trial or misappropriation of state funds. All the accused persons are charged for money laundering and there is a specific legislation for money laundering”. He argued “a unique characteristic of the Money Laundering Act of 2003 or 2004 is that it envisages a predicate offence and in section 14 (1) of the Money Laundering Act 2003/2004, the opening sentence there criminalizes any person who transfers money gotten from narcotic, illegal act or any other crime. The illegal act also presupposes that it must also be a criminal act.” 

Daudu further stated that there is no evidence of any illegal act, criminal act, looting of state’s treasury or predicate offence. That for money laundering trial to take place, there must be proof of evidence of illegal enrichment or criminal act.

He said that for a money laundering trial to proceed, there must be proof of a predicate crime and none exists in this case. And if none exists, then there is no basis to proceed. Continuing, Daudu said that EFCC’s lead counsel, Isiyaku SAN in his written address referred to pieces of evidence of “unconventional payments tagged security vote” and payments from “contingency funds”. To this Daudu argued that “the fact that a payment is unconventional does not make it criminal. He said the evidence referred to by EFCC’s lead counsel showed that the so-called unconventional payments were actually backed by vouchers.

Calling attention to what he called a “delicate submission”, Daudu said that “when a law or act talks about criminal acts that law is always specific. But when a conduct is tagged unconventional as basis for prosecution, such conduct should be linked to a written law. Daudu supported his stand with Section 36 (12) of the 1999 Constitution, saying that the constitutional requirement has not been met. He urged the Court to quash all 170 counts without exception and to discharge all the accused persons and ask them to go.” 

There has been mixed reactions to the judgement of the High Court as expected in a case like this.

Isiyaku, (SAN) had argued that, “Our address is dated on 11 August 2009, and filed it on the 17^th. We adopt and rely on the same”. He said that though the Money Laundering of 2003/2004 is linked to proceeds from illicit drugs and criminal act but the “ejusdem generis” rule is not applicable to section 14 (1) of the Money Laundering (Prohibition) Act. He said that that rule could only matter where there are general words following particular and specific words and that the general words should be construed and confined to the specified words. He also quoted three authorities to back his assertion (Buhari versus Yusuf 2003, Action Congress Versus INEC, 2007) the Supreme Court decision in SHELL Petroleum Development Company vs. Federal Board of Inland Revenue 1996).  

Mr. Augustine Alegeh (SAN), Ibori’s lead counsel while commenting on the judgment said “this is a well reached and articulate judgment, it is justice done, any body that looks into the judgment, lay man or lawyer will see that judgment has been done”, saying that “ we are ready to follow the EFCC to any level they want to take the cases to.”  

Meanwhile EFCC has said it was going to challenge the ruling at the Supreme Court saying that Ibori has a case to answer over the charges leveled against him.