Division of the Federal High Court to grant it ownership of the
$15million that was allegedly offered to the Economic and Financial
Crimes Commission, EFCC, in 2007, by convicted former Governor of the
state, Chief James Ibori.
In a judgment he delivered yesterday, Justice Gabriel Kolawole,
ordered that the money which has been in custody of the Central Bank
of Nigeria, CBN, since April 26, 2007, be forfeited to the Federal
Government, saying the Delta State Government failed to produce
satisfactory evidence establishing that Ibori looted the controversial
money from its treasury while in office as Governor between May 1999
to May 2007.
Origin of the money
Erstwhile chairman of the EFCC, Mallam Nuhu Ribadu, alleged that Ibori
had through a proxy, offered the agency $15 million bribe in a bid to
compromise investigations into his alleged complicity in acts of
corruption.
The matter came to public knowledge after Ibori was charged to court
by the anti-graft agency in 2007 for various offences. One of the 170
counts corruption charge that was preferred against former Governor,
pertained to the offering of bribe to the prosecuting agency.
However, in an affidavit in support of his application for bail,
Ibori, denied any knowledge of the money which was allegedly picked up
from the residence of a former aide to ex- President Olusegun Obasanjo
by the then Director of Operations of the EFCC, Mr. Ibrahim Lamorde,
insisting that he never asked or sent anyone to offer such money on
his behalf.
Declining to grant ownership of the money to Delta state yesterday,
the court, said the state did not by preponderance of evidence and
balance of probability, show that the money was removed from its tilt,
"not necessarily by Chief James Ibori, but during his administration."
The court further noted that the state had during the trial of the
former governor, sued the EFCC, contending that it never complained
that its money was missing, adding that the state should by concrete
evidence, in view of Ibori's denial of the money, show that the $15m
belonged to it.
Burden of proof
The court said the state could not in line with sections 131 and 132
of the Evidence Act, discharge the burden of proof, adding, "No court
f law or tribunal can resort to conjectures to declare that the money
ipso-facto must be appropriated or repatriated to Delta state.
"The claimant has woefully failed, by facts and evidence, to establish
its legitimate entitlement to the money. In the final analysis, the
said sum of $15m is hereby forfeited to the 1st respondent."
The court ordered FG to ensure that the money is retrieved from the
CBN and paid into the coffers or federation account, saying it should
be used for the betterment of the citizenry.
The court further instructed that the money should be captured in the
earnings of the federal government for the 2012/ 2013 fiscal year.
It will be recalled that Justice Kolawole had on July 24, 2012,
directed that anyone interested in ownership of the money should
approach the court with an application under section 17 of the Advance
Fee Fraud and Other Fraud Related Offences Act, 2006.
False claimants
Sequel to that directive, one Chibuike Achigbu went before the court
and claimed that he personally gave the money to Ubah for the purpose
of financing the Peoples Democratic Party, PDP, during the 2007
general elections.Nevertheless, Achigbu, who identified himself as an
oil magnate, quickly withdrew his application after he uncovered moves
by the EFCC to arrest and prosecute him.Likewise, a Lagos based
Refrigerator repairer, Mr. Olalekan Kayode, on November 23, 2012,
narrowly escaped prison after the court threw out his request that the
money be handed over to him for "proper manage-ment".Meantime, owing
to the directive of the court vis-à-vis an application FG alongside
the Attorney General of the Federation and the EFCC filed before it on
July 24, 2012, praying for an order of forfeiture, Delta State
government, on August 10, filed its own application where it
maintained that FG was bereft of the right of ownership to the $15m.
In its 35-paragraphed affidavit, Delta State, argued that the release
of the money would facilitate the current developmental projects in
the state.
Besides, the state, in its affidavit deposed to by one Nikiru Bridget
Emakpor a legal officer in the Delta State Ministry of Justice,
maintained that the $15 was the exclusive property of the state and it
is therefore entitled to collect same, being the bona fide owner.
Entitlement
According to the state, "any money, asset or property recovered from
Ibori rightly belonged to Delta State and same should be returned to
it as it has always maintained its entitlement to any asset recovered
from Ibori."
The state which approached the court through its own Attorney General
and Commissioner of Justice, Chief Charles Ajuyah, SAN, argued that
the jettisoned bribe money legitimately belongs to it, noting that,
"any denial by Ibori in respect of the money cannot affect entitlement
of the state to the amount."
The state said the reason why it did not formally apply for payment of
the money was in view of pending appeals before both the Supreme Court
and the Court of Appeal, saying it did not want to prejudice the
outcome of the appeal cases.
Moreover, the State claimed that all monies, assets and properties
recovered from Mr. Joshua Dariye, former Governor of Plateau State
were returned to the Plateau State, just like those recovered from
Chief Diepreye Alamieyesigha of Bayelsa were returned to Bayelsa
State.
It argued that there should be no legal basis to treat the case of
Delta State any different from others, saying it is in the interest of
justice that the money should be released to the state.
How mony was picked
However, in a 14 paragraphed affidavit deposed by one Bello Yahaya who
was one of the investigators assigned by the EFCC to investigate the
criminal case against Ibori, he told the court that: "while the
investigation was going on, on 25thApril, 2007, Mallam Nuhu Ribadu,
the then Executive Chairman of the EFCC called the investigation team
headed by Mr Ibrahim Lamorde the then Director of Operations, to pick
up cash in the sum of USD 15, 000, 000. 00 (Fifteen Million Dollars)
given to him and the Commission through an undisclosed agent of the
said James Ibori.
"That upon picking up the said USD 15, 000, 000. 00 (Fifteen Million
Dollars) we deposited same on 26th April, 2007 with the Central Bank
of Nigeria which was duly acknowledged and signed for by one M.M
El-Yallud, a staff working in strong room 1 of the CBN.
"That from the said 26th April, 2007, the money remained in the
custody of the CBN till date. The issue of giving bribe was raised by
me in my affidavit sworn to on 9th January 2008 in opposition to James
Ibori's bail application when he was eventually charged to court for
Money Laundering Offences.
"James Ibori denied through his reply to counter affidavit dated
10thJanuary, 2008, of giving the sum of USD 15, 000, 000. 00 (Fifteen
Million Dollars), to EFCC or its officials. That ever since April,
2007, no one has claimed ownership of the said sum and it has since
remained unclaimed money in the strong room of the CBN.
"That the said sum if left untouched and unspent in the state it was
kept in the strong room since April, 2007, may eventually be
destroyed, defaced, mutilated and become useless.
Order of forfeiture
"That it is in the interest of justice to, in the interim, make an
order of forfeiture to the Federal Government of Nigeria and allow
publication to be made in the National Newspaper to alert any
interested member of the public to come out within 14 days to show
their interest, failure to which this honourable court will make an
order of final forfeiture in favour of the Federal Government of
Nigeria.
"That the EFCC is ready to abide by the order that this honourable
court will eventually make. It is in the interest of justice to grant
this application," he added.
Adducing further reasons why the money should not be given to the
state, counsel to the federal government, Mr Rotimi Jacob, SAN,
alleged that Delta State government under Governor Emmanuel Uduaghan
had on two occasions, wired money totaling N100million to a foreign
account operated by the convicted former governor.
He told the court that the EFCC unearthed evidence showing that
whereas the first transfer of N50million was made to the Governor in
2008, the state, in 2010, made another transfer of the same amount
through Access Bank, fund he said was sent to Ibori in a bid to help
him wriggle out of the money laundering trial he was facing in London.
"My Lord, we are saying that if this particular money is released to
Delta State, it will be sent to Ibori also. Our position is that it
should be paid into the consolidated revenue for the benefit of
Nigerians. That is what the law says.
"It is on record that when EFCC was investigating Ibori, the AG of
Delta State, instituted a case against the EFCC stating that the Delta
State account should not be investigated and that how they spent their
money under Ibori should not be our concern.
Ibori harassed
"The AG even deposed an affidavit insisting that no money was lost by
Delta State government. They even got a court order against EFCC
saying the former governor was merely being harassed.
"My Lord, if it was true that Ibori actually stole that kind of money
from the state treasury, how come that the AG of that state has not
deemed it fit to institute a criminal charge against him in line with
his powers under section 211 of the 1999 constitution, for siphoning
such amount from the state?" Rotimi queried.
In his reply, the Delta State AG, Ajuyah, argued that the federal
government had not proved that the money did not emanate from the
Delta State treasury, adding "My Lord, there is no judgment of any
court today saying that the $15million in question was the proceed of
any crime."
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