Former Governor of Delta State, Chief James Ibori, scored a major victory in a London Court today as the Southwack Court Eight granted his request for a stay of proceedings pending the determination of ongoing trial in Asaba, Delta State of Nigeria.
In a very short session on Friday, the defence argued that what was in London was only money laundering charges, the United Kingdom proceeding would amount to an abuse of process especially in light of the Nigerian proceedings.
The application was successful. In his ruling, His Honour Justice Hardy said:
“I am asked to rule on the propriety of the UK proceedings whilst the Nigerian proceedings have yet to take place.
“I had requested further information from Nigeria as to the state of play there and the information I have received has been very helpful. I am told that the Prosecution are ready for trial and they can see no reason for any delay. I am of the view that the outcome of the Nigerian proceedings are not determinative for the UK trial, however I also accept that it would be unfair to proceed in the UK as the hearing in Nigeria is only a few weeks away. In order to prevent any injustice on the defendants, it would be unfair to proceed. I am told that the hearing in Nigeria will be short, it is expected to last a couple of hours and the judgment will be within two weeks. I believe therefore the Court should have the full picture and so will adjourn this matter to the 9th November 2009, when trial will start. I am also reminded that Court of Appeal applications will be heard during this time”.
This is a major victory for the defence, who had been arguing that the cases both in Nigeria and the UK are not just similar but the same. Thursday, the Crown Prosecution Service as well as the London Metropolitan Police argued that the UK court was not subordinate to the Nigerian Court, in a bid to defeat the stay of proceedings application.
The implication of this stay of proceedings is that everything now appears to depend on the outcome of the Ibori case before the Federal High Court, Asaba. If the Ibori wins there then no predicate crime can be made out for “if there is no crime, there can be no money laundering”, as defence lawyer Andrew Trollope (Queen’s Counsel, British equivalent of Senior Advocate of Nigeria) said in London immediately after the ruling. This is because the Crown accepts that they have no evidence of corruption, they are relying on inferences as to how the funds were handled. Senior police officers had to lie to sustain their allegations; the Prosecution resisted every attempt for disclosure of simple and basic documents.
Despite the victory, the defence legal teams have in the meantime commenced appeal proceedings, which are likely to be heard in the next few weeks.
Here in Nigeria, the Ibori case comes up again on 26th October, 2009. Already, Ibori’s lawyers have asked that the case be dismissed, claiming that the prosecution has not established any prima facia case against either Ibori or those charged with him.
The motion brought by Mr. Austine Alegeh (SAN), rested on three main planks; One, that “None of the counts disclose a prima facie case against any or all of the accused persons”, that is Ibori or any of his co-accused. Two, “the accused persons are not in any way linked to the offence of money laundering as charged by prosecution”. Three, “Constitutionally, the charges are incompetent as they constitute Delta State business or affairs of state which the Federal Government of Nigeria or any of its agencies such as the EFCC is incompetent to inquire into”.
In the affidavit in support of the application, filed by Mr. Emmanuel E. Okosun, of Alegeh’s chambers, and obtained from the Federal High Court, Asaba, Mr. Alegeh classified all the 170 count charges against Ibori into “13 clusters” for ease of reference, all said to be punishable either under the Money Laundering (Prohibition) Act of 2003 or that of 2004. Alegeh said in the application that the EFCC has failed to show in any way, and in all instances, that any “offence has been disclosed against any of the accused”.
Specifically, Alegeh claimed in section (g) of the application; “That in other words, the accused persons are not linked to any of the allegations made in the 170 count charge”. Actually, this is at the heart of the application; that what EFCC has done so far is to claim that Ibori or his associates may have moved money , but so far failed to show how the accused persons moved any moneys from a particular bank to another, the dates of such movement, from which bank account to another, etc..
Alegeh therefore held that “the prosecution has not been able to meet this vital requirement because such illegality or proof of corruption does not exist, prima facie or at all, on the face of the documents annexed to the charge”.