Ibori Wins One, Loses Another

Written by This Day Thursday, 29 April 2010

It was a case of win-one, lose one yesterday for embattled former Delta State Governor James Onanefe Ibori.
The move by the Economic and Financial Crimes Commission (EFCC) to appeal against the decision of the Federal High Court in Asaba to absolve Ibori of all allegations of corrupt practices while in office suffered a setback.

This is because the Court of Appeal in Benin sitting as Electoral Appeal Panel refused to entertain the appeal filed by EFCC against the decision of the Federal High Court, Asaba, which had discharged Ibori of corrupt allegations.
In Asaba, however, the Federal High Court sitting in the city turned down an application for a ‘preservative order’ filed by Ibori to prevent EFCC from arresting him.
While giving his ruling in the oral application brought by Ibori’s lead counsel, Joseph Daudu (SAN), Justice Ibrahim Buba said there was no sufficient material before the court to warrant the granting of such an application.

A five-man Electoral Appeal Panel sitting as the appellate court in Benin decided not to hear the EFCC case.
When the matter was called for mention, Ibori counsel, Mr. Augustine Alege (SAN), observed that the case was a criminal matter, which should go before the regular appeal court.
According to him, “we don’t know why we are here because the panel is to hear election petitions. We are not aware of any complaints that would necessitate the hearing of the case by the panel”.

Following his observation, EFCC counsel, Mr. Ibrahim Ishaku, SAN, while urging the court to hear the case, said there was only one Court of Appeal in the country.
“We believe the panel is competent to hear the application. It is only an application, we are not going into the substantive matter yet,” he submitted.

The court in its ruling delivered by the Chairman of the Electoral Panel, Justice M.B. Dongban-Mesen, agreed with the EFCC’s counsel that there was one court of appeal in the country, but quickly concurred with Ibori’s counsel that the matter before the court was a criminal matter.
The court also agreed with Alege’s submission that the case ought to have been taken by the regular Court of Appeal, adding “this panel is not set up for this application”.
Consequently, the court ruled “We shall refrain from taking the application. The application shall be taken by the regular court”.
Justice Mercy Awokulehin of the court had in November 2009 discharged and acquitted Ibori over the 170- count charge brought against him by EFCC for lack of evidence.

Ibori was charged at the Federal High Court, Kaduna in December 2008 but following an application by his counsel, the case was transferred to Asaba division of the court in the state where the alleged offences were committed. 
Refusing to grant the preservatory order, Justice Buba said: “It is clear that the order, whether preservative, interim or interlocutory cannot be granted to protect the legal right of the applicant. Therefore, at this stage, without any material before the court with which the court can use without going into the substantive matter to show that the applicant has a legal right and to show that the respondents are acting ultra varies beyond their powers.

“The court will be circumspect to wittingly or unwittingly delve into the substantive matter, therefore, it will be premature at this stage to make any order on the basis of the oral application without materials before the court, therefore, I therefore decline to make a preservative order, and nothing stops the applicant from filing a formal application”.
At the resumed hearing of the matter yesterday, no sooner had Mr. Abubakar Balarabe Mahmud (SAN) announced his appearance for the 1st, 3rd and 4th respondents (Attorney-General of the Federation, Inspector- General of Police and Director, State Security Services) in the matter and pleaded for an adjournment to enable him study the cases, than Daudu (SAN) moved for the oral application for the preservative order.

The atmosphere in the court then suddenly became charged.
Dawodu drew the attention of the judge to what he called covert moves by EFCC and the Federal Government “to get Ibori dead or alive.”
He argued that the rug was about to be pulled from under the feet of the court and that the court could make a preservatory order to protect Ibori from attempted arrest and further harassment by EFCC and other security operatives now that the matter was before the court.
“I am making a strong application, the applicant has been declared wanted, dead or alive, we urge the court to make a preservative order. Section 6 of the 1999 Constitution, it enjoins both parties to submit themselves to the rule of law.

Under the professed rule of law, everybody is equal before the law, a lot has been done to arrest the applicant  since the court said we are bound by the undertaking made in this court by EFCC council, I urge my lord to grant an injunction to safe guard the decision of the court. I urge my lord to grant this application, to restrain all the defendants, agents, and servants, whosoever they may ask from attempting to arrest the applicant pending the determination of this matter.”
Daudu could hardly finish with his submission when Mr. Charles Okoroma, counsel to EFCC   interjected arguing that the application amounts to shielding Ibori from been arrested, criminal investigation and prosecution, adding that Daudu’s argument “does not hold water because the statutory body be asked or prevented from performing his statutory duties and functions as “no body can be insulated”

He argued that nothing has changed since on the 19th of April to date when then he made the declaration in court that nothing will happen to Ibori and nothing has happened till now, adding that the tactics been employed by the applicant amount to pulling the rug on the fit of the court and urged the court  not to grant the order.
In his submission Mahmud opposed that the application for a preservative order, saying that it lack merits adding that, “there is no bases for that order, the issue is not one of safe guarding the jurisdiction of the court.

There is no legal enforceable right called that right against arrest. No body has the right not be arrested, the court can not issue a blanket order not to be arrested,”
He further argued that “section 214 of the constitution of the Federal Republic of Nigeria recognizes the powers and duties of the police to prevent crime, investigate crime and apprehend offenders, which is applicable to all the generalities of Nigerians”, adding that “the court cannot be asked to prevent or stop this statutory body from performing their duties and functions in the society. It is outside the scope of the jurisdiction of this court.”
He said the best the applicant can do was to go to court to say that his right has been breached and the court is satisfied, he will be entitled to redress, so nobody has the blanket right not to be arrested.

He urged the court not to entertain the application. The case has been adjourned to 10th May for further hearing.
Meanwhile, Ibori’s counsel, Daudu (SAN) has filed a suit restraining the Attorney-General of the Federation, EFCC, Inspector-General of Police and SSS Director from arresting him.
In the suit number FHC/ASB/CS/34/2010 titled: “The Matter of an Application by Chief James Onanefe Ibori for the Enforcement of his Fundamental Rights to Fair Hearing and Personal Liberty under the Fundamental Rights Enforcement Procedure Rules 2009”, was filed at the

Federal High Court Asaba, immediately after Justice I. N. Buba adjourned proceedings on the substantive issue till May 10, 2010.
A statement signed by Ibori’s Media Assistant, Mr. Tony Eluemunor, said the motion was specifically asking for “an order of injunction restraining the 1st, 2nd, 3rd and 4th Respondents by
themselves or through their officers, agents, privies and assigns from arresting, harassing and/or intimidate the applicant in any manner whatsoever and howsoever pending the hearing and determination of the applicant’s substantive motion on notice, which has been adjourned for hearing to the 10th of May, 2010 and for such further orders as this Honourable Court may deem fit to make in the circumstances”.

The affidavit in support of the motion signed by Chief Azikiwe Ako (JP) affirmed that he was in court on the 19th of April 2010 when EFCC’s counsel, Mr. Chile Okoronma, on EFCC’s behalf “specifically stated in court that since the service of the court processes, they have not done anything and will not do anything that will make the determination of this matter a fiat accompli” because of which the judge saw no reason to make a preservative order.

Ibori has expressed his gratitude and appreciation to his teaming supporters across the country who he said had rallied to his defence “since this round of political persecution and not legal prosecution against him” began.
He challenged them to always maintain the peace because he is not only a lover of peace, but he has implicit faith in Nigeria’s legal system.