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EFCC accuses Ibori of delay tactics

Posted by By KENNY ASHAKA, Kaduna on 2008/04/17 | Views: 536 |

EFCC accuses Ibori of delay tactics


The Economic and Financial Crimes Commission (EFCC) has accused the former governor of Delta State, Chief James Ibori of delaying his trial.

The Economic and Financial Crimes Commission (EFCC) has accused the former governor of Delta State, Chief James Ibori of delaying his trial.

However, Justice Mohammed Lawal Shuaibu of the Federal High Court has fixed May 8 for ruling on whether or not the case should be stayed pending the determination of the Notice of Appeal filed by Ibori and his co-accused, Udoamaka Okoronkwo.

Justice Shuaibu had, early last month, dismissed an oral application for adjournment brought by Ibori whose 129-count charges of money laundering and embezzlement, along with Udoamaka, was increased to 167 through an amendment.
Wednesday’s application for a stay of proceeding, pending the determination of the appeal, which was supported by 15-paragraph affidavit sworn to March 11, 2008, with the Notices of Appeal by Ibori and Udoamaka, was brought pursuant to section 66 of the 1999 constitution.
EFCC lawyer, Rotimi Jacobs, in opposing the stand of Ibori, submitted that the application was calculated to delay the trial.

“This appeal is in line with their threat and intention to delay this trial; the threat that the substantive case would not be allowed to go on.”
He said EFCC would rely on the 37-paragraph counter affidavit sworn to by Bello Yahaya, the IPO in the case against the former Delta State governor and his co-accused persons.
According to Rotimi, the only issue arising from the appeal made by the two accused persons was whether the application is an appropriate one to grant a stay of proceeding pending the determination of the case against them.

He said: “We submit that there are six accused persons for this case and only two persons filed the appeal. The third to sixth accused persons are not parties to the appeal.
“In other words, the third to sixth accused persons want their fate to be decided by this court. So, the interest of the four accused persons and the prosecution has to be considered in the application.”

He cited the case of Bamaiyi vs the State-2003 17 NWLR part 848 page 47, 63,64 and 65 where the court refused a stay of proceedings because of the interest of others and PDP Vs Abubakar 2007 2NWLR at 1018 page 303, particularly at 314, on the attitude of the court to buttress his point.
Rotimi drew the attention of the judge to the order of accelerated hearing, which also included the date he gave for the commencement of the trial and said the court must avoid delays.

He averred that the appeal was one against interlocutory decision and submitted that even if the appeal succeeds at the Court of Appeal, it would not finally dispose of the case.
Citing Okem Enterprises Vs NDLC 2003 5NWLR part 814 page 295, particularly at page 503, which was handled by the Court of Appeal, the EFCC lawyer submitted that Ibori and his co-accused could wait after the final judgment and make an appeal.
Referring to the three conditions set by Ibori’s counsel, Rotimi submitted that the counsel had a duty to show that there is a valid notice of appeal.
He said: “For now there is no valid notice of appeal. I want to draw your attention to their purported notice of appeal, in exhibits I and I a.

“Your lordship will see that the counsel signed the appeal on 11th of March, 2008. The accused did not sign it. There is a strange document attached to the notice of appeal. It was never signed by the registrar or stamped. The character is different from the notice of appeal itself.
“That is not even the portion the accused is supposed to sign. The first accused never filed the notice of appeal. By Order 4 rule 4 of the Court of Appeal rules, the notice must be signed by the accused.”
To buttress his argument, he cited the case of Nwanke Vs the Attorney-General of the Federation 2007 8 NWLR part 1035 page 1, particularly page 13-15, where the Supreme Court held that such an appeal signed by a counsel cannot warrant a stay of proceeding.

Averring that there is no appeal before the court, Rotimi submitted that the grounds of appeal did not raise any valid issue of law, arguing that they are mere points raised to delay the hearing of this case.
With specific reference to Bamaiyi Vs State (supra) 2003 page 62, which was decided by the Federal High Court, Rotimi asked whether it can be said that the issue of fair hearing is genuinely raised.
“The balance of convenience is not really on the side of the applicant. Granting it will trample on the rights of others and the co-accused,” he argued.

He debunked both Ajayi and Abacha cases cited by the accused person’s counsel, submitting that if the stay was not granted, the cases were capable of being finally decided.
Rotimi urged the judge to dismiss the application and give effect to the order of accelerated hearing, which he earlier granted.
Raising point in favour of his application for a stay of proceeding earlier, Ibori’s counsel, Joseph Daudu (SAN), stated that he was relying on all the 25 paragraphs submitted by his clients, particularly three to 14.

Daudu submitted that the existence of the undoubted right of proof embedded in section 242 of the 1999 constitution allows such rights of appeal, just as the need to show that a valid notice of appeal had been filed.
He averred that the substance of appeal would be destroyed should the court proceed with the matter.
Said he: “In such situation, the court should be sympathetic to grant the motion. The risk is that those things we complained of would be unjustly visited on us. In other words, the appeal would be rendered nugatory.

“The appeal raises fundamental grounds of law, which requires a pronouncement by the Court of Appeal, in view of the pattern raised by EFCC outside the normal procedure. We can as well use this as a test case.”
On why the stay should be granted, Daudu cited the case of Abacha Vs state 2001 7NWLR part 713 page 551, particularly at 555, to justify the point.
He argued that in spite of great skepticism as to the motive of the appellant, the Court of Appeal still granted it and added, “in this case, your lordship is bound to lean towards the interest of justice by granting this motion.

“One more hurdle is the bottleneck, which section 40 of the EFCC Act intends to create. But it doesn’t exist in reality subject to the provision of the court anymore. It is safe to describe section 46 as an ouster.
“Section 40 excludes the jurisdiction of this court to entertain and I submit that the provision provides the necessary application for misrule. I submit that section 40 of the EFCC Act is inapplicable to the circumstances of this application.

“The right of appeal is a continuum and a stay of proceeding is itself the exercise of the power vested on the constitution.”
He cited the case of Eyesan Vs Sanusi 1984 ISCNLR page 253 particularly at page 369, submitting that the case shows clearly that section 40 of the EFCC Act should not apply.

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Fay(Katy, Texas, US)says...

Actually translates to bravehearted.