Hunting James Ibori

Hunting James Ibori

IN the free-wheeling contempt and wanton libel perpetrated by the so-called Derivation Front, one collateral victim of the quest to determine whether Delta State Governor James Ibori is an ex-convict as claimed by his adversaries has been the Supreme Court. Before delivering its judgment on February 6, the Supreme Court took the unprecedented step of reading a prefatory statement by Chief Justice Muhammadu Lawal Uwais in which it repudiated the bribery allegations so flagrantly made against members of the highest bench by the Derivation Front. The deluge of sympathetic opinions expressed in favour of the integrity of the Supreme Court is the clearest vindication yet that, contrary to the scare-mongering inelegantly disguised as defamation, the Supreme Court did not occasion a miscarriage of justice.

In summary, the apex court upheld the earlier decision of the Court of Appeal that the certified record of proceedings of the Bwari Upper Area Court showed that one James Onanefe Ibori, who was the defendant in that case, was duly convicted for the offences charged, among which was criminal breach of trust. This decision upturned the verdict of the High Court. But was the convicted James Onanefe Ibori the same as the incumbent Governor of Delta State, who bears the same first, middle and last names? Again, the Supreme Court upheld the earlier ruling of the Court of Appeal that the identity of the convict was not established by the High Court, and in the circumstance, the matter should be remitted to that level of court, before another Judge, who will try the matter de novo (anew).

For propaganda purposes, adversaries of Governor Ibori have been milking the affirmation by the apex court that the record of proceedings showed that a James Onanefe Ibori was convicted. The sense of adversarial triumphalism has instigated a rash of paid advertisements proclaiming that, ultimately, the governor would be identified as the real "convict" and would, therefore, find himself in an untenable position to continue as governor, since the Constitution forbids any such occurrence at least within 10 years of conviction for an offence involving fraud or dishonesty. Some of the adverts have declared that there is only one "James Onanefe Ibori" in the whole wide world; and that that one person is the incumbent Governor of Delta State. His opponents are so certain, therefore, that they are already looking forward to the re-trial, where the convict will be positively and irrevocably identified and thereafter evicted from Government House.

Given the high-wire politics involved (especially the hushed speculation that Ibori is being lined up for the Ngige Treatment) and more, painfully, the legal ignorance that fires up most of the enthusiastic rantings, Ibori's opponents have been aghast that he, too, has been celebrating the ruling of the Supreme Court. "Why did the Governor hold a Thanksgiving Service to celebrate the failure of his appeal?" one advert asked incredulously last week. "The only pitiable sense one can deduce from this," the advertiser surmised, "is that the Governor is celebrating the fact that the Supreme Court, acting fairly, did not send him packing in that judgment."

But that, and most other anti-Ibori sentiments have not been founded on an unhurried reading and sober reflection on the judgment delivered by their Lordships on February 6. For instance, the Supreme Court upheld the following pronouncement of the Court of Appeal: "The appellants in their approach to this appeal laboured under the notion that once they succeed in their appeal, their success would lead to the conclusion that the 5th respondent was an ex-convict who could not be allowed to contest for the office of Governor of Delta State pursuant to Section 182 (1) (e) of the 1999 Constitution. That obviously must be a false notion given the procedure followed by the lower court to the determination of the appellants' suit."

Invariably, what will become clearer to many laymen is that law is steeped in technicalities. You may argue that this is a trite point; yet, it is important to restate it, because if the Ibori case goes the whole judicial hog and it turns out that he is not nailed as his adversaries expect, many more misguided and uncouth Derivation Front groups might emerge to disparage the judiciary once more. A court does not adjudicate in an omnibus manner. It proceeds on the basis of the issues, facts and evidence before it. That is how it was possible that despite the argumentation and prayers of Ibori's team of counsel, the Court of Appeal and later the Supreme Court held that 'Exhibit A', as the certified record of proceedings of the Bwari Upper Area Court, was deemed admitted in evidence and ultimately upheld. Although Ibori's lawyers also argued that the Bwari Upper Area Court had no jurisdiction to try the offence it was purported to have tried, that also was overruled by the appellate courts.

In simple terms, the Court of Appeal and later the Supreme Court held that there was a conviction on September 28, 1995 of the defendant (one James Onanefe Ibori) because, ab initio, in settling the issue for determination by the High Court of the Federal Capital Territory, the lawyers for the plaintiffs (loosely referred to here as Ibori antagonists) and the defendants (Ibori and others) agreed that the sole issue was whether based on "Exhibit A" there was conviction of anybody at all. Ibori's lawyer had argued: "Our submission is that nobody was convicted at all. If the court looks at the document what it contains is that somebody pleaded guilty to an offence and he was sentenced."

It is however not sufficient to run away with the Supreme Court's pronouncement upholding the Court of Appeal ruling that there was conviction on the face of the record of proceedings of the Bwari Upper Area Court. Indeed, the Court of Appeal was trenchant when it ruled that it would amount to "undue legalism and irrelevant hair-splitting" to contend that there was no conviction "where the purpose of tendering Exhibit A was merely to show that the accused therein was convicted". The clincher and caveat could be located in the following sentence also delivered by the Court of Appeal: "The procedure leading to the conviction may be deficient and liable to be set aside by an appellate court upon a proper appeal against the judgment of the Upper Area Court; but it is nonetheless still a conviction."

In its judgment of February 6, the Supreme Court held that "what the Court below (i.e. Court of Appeal) said is that the Upper Area Court Bwari in the course of exercising its undoubted jurisdiction made some technical errors in that it did not comply with section 157(1) of the Criminal Procedure Code". The technical errors were expressed thus: "where an accused pleads guilty, a native court cannot convict under section 157 of the CPC...unless evidence is taken from the complainant and a charge framed". In the Bwari record of proceedings, the accused pleaded guilty and the Upper Area Court imposed a sentence. Note, as stated earlier, that this is a good ground for appealing to set the judgment aside. Section 57 of the Area Courts Act, Cap. 477 Laws of the Federation of Nigeria provides that "Leave to appeal out of time to any court may be given by a court upon such terms as to the court shall seem just." Furthermore, section 291 of the Criminal Procedure Code stipulates that "A criminal appeal, other than an appeal from a sentence of fine, shall finally abate on the death of the appellant." What remains open therefore is whether an appeal against the conviction of the Bwari Upper Area Court can still lie, given the pronouncements of the appellate courts.

Yet, assuming an appeal is foreclosed and that the question of the conviction of one James Onanefe Ibori is res judicata (a decided case), identifying that Ibori is unlikely to be a tea party. With the tenacity already displayed by the parties, one can see the issue ending up once more at the Supreme Court. That looming legal tussle will revolve around the provision of section 225(2) of the Evidence Act. The subsection deals with proof of previous conviction by the production of a certificate of conviction detailing the substance and effect of the conviction. "If the person alleged to be the person referred to in the certificate denies that he is such person the certificate shall not be put in evidence unless the court is satisfied by the evidence that the individual in question and the person named in the certificate are the same." What is the test of the satisfaction of the court?

The conviction that the Supreme Court upheld is qualified. At page 24 of the lead judgment, Ejiwunmi JSC held that "it was open to the Court of Appeal having held that Exhibit A on the face of it evidenced the conviction of the person named therein to order that the matter be heard by the High Court, Abuja, to determine whether the 5th defendant/appellant (Ibori) was the person convicted." Note the words "on the face of it". That is, prima facie. That requires proof, which may be available at the retrial. For as their Lordships ruled, "for the purpose of the new trial, parties are to file fresh pleadings wherein they are to clearly plead the issue in dispute". The battle between Ibori and his stalkers is about to begin all over again. Ibori hunters still have a long way to go. The path is not smooth either; and their quarry is getting out of harm's way.

March 2004