IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN BENIN CITY
SUIT NO: FHC/B/CS/862/2007
1. ATTORNEY-GENERAL OF DELTA STATE
2. DELTA STATE GOVERNMENT
3. DR. IFEANYI OKOWA PLAINTIFFS
(Secretary to the Delta State Government) APPLICANTS
4. AUDITOR-GENERAL OF DELTA STATE
1. ECONOMIC AND FINANCIAL CRIMES COMMISSION
2. THE EXECUTIVE CHAIRMAN,
(Economic and Financial Crimes Commission DEFENDANTS
3. THE ATTORNEY-GENERAL OF THE FEDERATION RESPONDENTS
COUNTER AFFIDAVIT OF 1ST DEFENDANT/RESPONDENT TO THE MOTION DATED 8TH OCTOBER 2007.
I, YAHAYA BELLO, Male, Nigerian and Police Officer of 15A Awolowo Road, Ikoyi, Lagos State do hereby make oath and state as follows:
1. I am a Superintendent of Police assigned to the 1st Defendant by the Authorities of the Nigeria Police Force and by virtue of my position I am familiar with the facts of this case.
2. I have the authority and consent of the 1st and 2nd Defendants to depose to this affidavit.
3. I am the head of the team of investigators directed by the 1st Defendant to investigate the allegations of conspiracy, official corruption, diversion and misappropriation of public funds, stealing and money laundering perpetrated by Chief James Ibori and his aides from 1999 – 2007.
4. While paragraphs 1-9 of the affidavit in support of the motion on notice are correct paragraphs 10-29 thereof are not true.
5. Contrary to the averment in paragraph 12 of the supporting affidavit the 1st Defendant has no plans to harass any official of the Delta State Government.
6. That in further denial of paragraphs 13,14,15,16,17 and 18 of the Applicants’ affidavit the 1st and 2nd Defendants/Respondents state that they are guided by the welfare and interest of the citizens of Delta State and would not take steps that will negate the spirit and letters of the law including due process in carrying out its investigative assignments.
7. That in answer to paragraphs 19 and 20 of the Applicants’ affidavit the 1st and 2nd Defendants/Respondents deny issuing any threats to the Applicants and has no plans to freeze the accounts of the Delta State Government.
8. That in answer to paragraph 21 of the Applicants’ affidavit the 2nd Defendant informed and I verily believe that he never granted any such interview where threats were issued on the Applicants.
9. That in denial of paragraph 22 of the Applicants’ affidavit the 1st and 2nd Defendants do not intend to ground the activities of the Delta State government but are merely carrying out investigative activities pursuant to the provisions of the EFCC Act 2004 and the request of the London Metropolitan Police in line with the bilateral treaty between Nigeria and United Kingdom.
10. That in denial of paragraph 23(a) of the Applicants’ affidavit the 1st Defendant never threatened to seal the offices of the various departments of the 2nd Plaintiff including the Ministry of Finance, the Accountant General’s office and the Auditor-General’s office.
How Ibori Looted Delta State, EFCC releases deatils in a Sworn Affidavit Last View on Thu 19th March, 2009 Last Modified on Wed 31st October, 2007 3:27:09 am Author: dmin Sahara
11. That in denial of paragraph 23(b) of the Applicants’ affidavit the 1st Defendant states that it is not making unlawful efforts to procure and serve freezing orders on the Banks where the 2nd Plaintiff has or maintains accounts as alleged.
12. That in denial of paragraph 23(c) of the Applicants’ affidavit the 1st Defendant states that the ongoing efforts of the 1st Defendant to wipe out economic and financial crimes throughout the country are restoring public confidence and the confidence of foreign investors to invest in Nigeria.
13. The 1st Defendant has received many petitions alleging the commission of serious economic and financial crimes by Chief James Ibori, his aides and several officials of the Delta State Government.
14. Two of such petitions were sent to the 1st Defendant by Concerned Elders and Citizens of Delta State from November to December 2006. Attached herewith and marked Exhibits “EFCC1” and “EFCC2” are copies of the said petitions.
15. Some concerned indigenes of Delta State have sued the 1st Defendant in the Federal High Court over the alleged delay in the prosecution of Chief James Ibori.
16. The investigation carried out by the 1st Defendant’s team headed by me has revealed the involvement of Chief James Ibori and his accomplices in the following economic and financial crimes:
i. The transfers made into the account of Christine Ibie Ibori (Chief James Ibori’s sister) held in HSBC London was on behalf of Onovin Nig. Ltd., a company solely owned by Vincent Uduaghan, a younger brother to the present governor of Delta State, Dr. Emmanuel Uduaghan, the latter who had served as Commissioner for Health and Secretary to the State Government under Ibori’s Administration between 1999 and 2007.
ii. Investigation reveals that Onovin Nig. Ltd. was awarded a contract in December 2004 for laying of tartan tracks in Oghara Stadium at the sum of N142.9 million by the Delta State Government.
iii. That said Onovin Nig. Ltd. had secured the services of another company, a German based firm, BSW Postfach 1180, Deutschland for the supply and laying of the tracks in Ogbara Stadium.
iv. A total of two hundred and eighty four thousand Euros (E 284,000.00) was wired to the German Company by Onovin Nig. Ltd. for the job while another sum of N77.8 million naira equivalent from the contract sum was wired to the account of Christine Ibie Ibori, (Chief James Ibori’s sister) held in HSBC, London about the same time.
v. Further investigation carried out on Onovin Nig Ltd. account revealed some monthly lodgments of Delta State Government cheques of five to seven million naira spanning from 2002 to 2007 to the region N350 million naira which the owner claimed to be payments for the supply of fuel to the Government House from Total Nig. Plc. Depot in Benin, Edo State.
vi. That Total Nig. Ltd. which equally had the same contract for the supply of fuel to the government House denied having any dealings with Onovin Nig. Ltd.
vii. That transfers were made into Udoamaka’s account in HSBC London, which originated from three Assurance Bank Drafts amounting to about N140 million.
viii. That investigation conducted on Udoamaka’s accounts such as Sagicon Nig Ltd., Rivbbed Agro Allied, Saagaris Properties, Global Little Drops held in Oceanic and Zenith Banks revealed several lodgments of Delta State Government cheques in the neighborhood of N2 billion out of which N1.3 billion Naira were paid out between May and December 2006.
ix. That several cash lodgments amounting to N400 Million were also noticed both in the personal “Pearl” Account and Companies’ accounts by characters such as Ede Ogoro and Charles Isiayei whom the investigation team discovered to be Private Secretary to the Governor of Delta State and Chief Accountant of the Delta Government House respectively.
x. That the investigation team also discovered other several cash lodgments running into billions of naira which were also made by the above Ede Ogoro and Charles Isiayei in connivance with some Bank officials into the following accounts: Koln Nig. Ltd., Silhouette travels, Prime Chambers, MER Engineering Ltd., Bainenox Ltd. and so on spanning from 2001 to the last day of James Ibori Administration and purely drawn from the “Security Votes” of the State under the Permanent Secretary, Government House, Asaba.
xi That Prime Chambers, one of the beneficiaries of the billions of naira cash lodgments is owned by Professor Utuama, the present Deputy Governor of the State and a former Attorney-General and Commissioner of Justice during Ibori’s administration.
xii That Bainenox Ltd. account in UBA Plc is being operated by Chiedu Ibie, who is also a Director of MER Engineering and Koln Nig. Ltd. Companies believed to be owned by Chief James Ibori.
xiii. That investigation on Wings Aviation reveals an on-going transaction between the Aviation Company and Bombardier Inc. (Canada) over the purchase of an air craft at the cost of USD 25 million for the personal use of Chief James Ibori.
xiv That payments were made to the UK Solicitors by Wings Aviation Parabola International Corp (a Mauritius based company owned by a Zambian (Edward Shamutete) linked to Chief James Ibori), Copex Management Service, another Mauritius firm on behalf of Erin Aviation, Pamaron Oil and Gas etc.
xv. That part of the money paid from Nigeria for the purchase of the aircraft was the USD 1 million Dollars paid to the Solicitors by Pamaron Oil and Gas Ltd from Fidelity Bank.
xvi. That further investigation however revealed that the transaction was made on the order of Bi Courtney Ltd. through another company, Flodan Ltd. These two companies which moved money for Chief James Ibori by using another company, BIADOXE Ltd. as a disguise, are owned by the same person.
xvii. That investigation on the acquisition of NAFCON revealed that O-secul Nig. Ltd., a company owned by Mike Orugbo bidded and acquired the company in 2005 for the sum of USD 152 million dollars.
xviii. That during the bid process, the sum of USD 2 million dollars was sourced by Mike Orugbo and paid to the company’s liquidators via a new Nigerian Bank for the sum of N280 million naira issued sometime in August 2005.
xix. That investigation showed that the Oceanic Bank raised the remaining money on behalf of O-secul for the acquisition of the fertilizer company while there exists no evidence of previous banking relationship between O-Secul and Oceanic Bank but the Bank felt comfortable in granting the large facility to the company.
xx. That the sum of USD 46 million dollars was received by the Bank via a Certificate of Capital Importation from Copex Management Service, the same Company that wired money to UK Solicitors for the acquisition of aircraft on behalf of Erin Aviation, this time, on behalf of ‘NOTORE Mauritius’ for the acquisition of 39% of NAFCON now NOTORE chemical industries Nig. Ltd.
xxi That the so-called Notore Mauritius is a group of foreign investors mainly from EMP a US based firm and Egypt Fertilizer Company as claimed while investigation further revealed that the duo were brought into the investment by the same UK Solicitors, Arlington Sharmas.
xxii. That another payment of N4.418 billion was received by Oceanic Bank from Brisbane Ltd. via two Intercontinental Bank Manager’s Cheques for acquisition of 13% of the fertilizer company while Brisbane Ltd. is owned by Henry Imasekha who is also the sole owner of Berkeley Group.
xxiii. That investigation on the origin of the money paid Brisbane however, revealed that in 2001 Mr. Henry Masekha used Bromley Ltd. to secure a loan of N2.2 billion naira from New Nigeria Bank without any collateral or evidence of previous Banking relationship with the Bank and purchased 10% of Econet Nigeria Ltd. (now Celtel) while few weeks later ‘Delta State Government’ bought 5% of the Econet shares from Bromley Ltd. at the sum of N2.5 billion naira via a Standard Trust Bank Draft which he used in liquidating the New Nigeria Bank facility.
xxiv. That in 2006 during the taking over of V-mobile by Celtel, Bromley Ltd. sold the remaining shares to Celtel and it is from this money that Brisbane Ltd. acquired 13% of the fertilizer company.
xxv. That investigation on share placements in Nigerian banks and companies revealed the diversion of N5 Billion from the accounts of the Delta State Government in Oceanic Bank and Zenith Bank for the purchase of Afribank shares for Chief James Ibori. The fraudulent transactions were perpetrated through the use of 14 fictitious companies such as Double Dip Nig. Ltd., Arusha Nig. Ltd., Abajim Nig Ltd., Lugba Nig. Ltd., Mombassa Nig. Ltd., Limpopo Nig. Ltd., Zaragoza Nig. Ltd., Sandton Nig. Ltd. etc.
xxvi. That the 1st Defendant’s/ Respondent’s intervention succeeded in putting a stop to the diversion of the funds to Chief Ibori’s private hands and recovered the said funds with even a benefit of capital gain on the investment.
xxvii. That the funds have since been returned to the coffers of the Delta State Government to enable the Government carry out valuable projects for the people of Delta State.
xxviii. That investigation on allegations of public funds diversion to acquire
Wilbros Nig. Ltd., a multinational oil servicing firm in Port
Harcourt sometime in 2006.
xxix That the said Wilbros Nig. Ltd was acquired for USD 155 million by a new established company Ascot Offshore Nig. Ltd. registered and solely owned by Mr. Henry Imasekha, the same character moving funds in Celtel, Oando and NOTORE chemical industries.
xxx. That on the assumption of office as Governor of Delta State in 2003 Chief James Ibori declared having only four(4) properties he acquired from 1995 and 1999 all valued at N100 million naira and seven (7) plots of land acquired between 1983 and 2000 with a total value of N5 million naira. Our investigation has so far revealed the acquisition of over 20 properties in and outside Nigeria by Chief James Ibori. xxxi. That our enquiries also confirmed allegation of massive fraud and theft of public funds against Chief James Ibori in collaboration with the State House of Assembly members using supplementary budget as disguise.
xxxii. That supplementary appropriation was sent to the State Assembly for the approval of over N40 billion naira between 1999 and 2005 accompanied with executive letters all dated 2004 signed by Chief Ibori for the requests. The proceeds of this massive fraud are currently being traced.
xxxiii. Several billions of Naira meant for “Security Vote” by the Delta
State Government from 1999-2007 were diverted by Chief James
Ibori and his collaborators.
17. That based on the foregoing the 1st Defendant/Respondent has concluded investigation into the aforesaid allegations of serious economic and financial crimes and is ready to prosecute all those found to be culpable in the circumstances.
18. Apart from the foregoing the 1st Defendant has also been directed by the Federal Government to assist the Metropolitan Police in the investigation of money laundering offences allegedly committed in the United Kingdom by Chief James Ibori and three of his personal aides. Attached herewith and marked Exhibit EFCC 3 is a copy of the letter of the 3rd Defendant dated 28th September, 2007.
19. Following the directive of the Federal Government the 1st Defendant has assisted the Metropolitan Police in the said investigation of money laundering offences committed in the United Kingdom by Chief James Ibori and his aides.
20. Chief James Ibori has not filed any case against the Defendants as his civil rights have neither been violated nor threatened in the course of the comprehensive investigation embarked upon by the 1st Defendant.
21. Chief James Ibori was not arrested but invited to assist the 1st Defendant in the investigation of his alleged involvement in serious economic and financial crimes.
22. Chief James Ibori responded to our invitation and made useful statements in the course of the investigation and was therefore granted bail in self recognizance.
23. Public officers in the service of the Delta State Government and private persons including officials of banks and other corporate bodies have also made statements in connection with the allegations of fraud, theft and money laundering running into several billions of naira belonging to the Government of Delta State.
24. The Plaintiffs have benefited from the investigation conducted so far by the 1st Defendant as the sum of N5 billion illegally diverted by Chief James Ibori to acquire shares for himself has been recovered and paid back to the coffers of the Delta State Government.
25. The Authorities of the United Kingdom and Nigeria are currently involved in recovering other ill-gotten assets of Chief James Ibori and his fronts for the benefit of the people of Delta State.
26. Several assets worth 35 million (Thirty Five Million Pounds) overseas alleged to be proceeds of crime and traced to Chief James Ibori have been frozen by a British Court.
27. Instead of co-operating with the Defendants to recover the looted wealth of the impoverished people of Delta State the Plaintiffs are using the machinery of government to frustrate the investigation and prosecution of criminal suspects.
28. The Plaintiffs rushed to file this suit on October 8, 2007 in order to frustrate the investigation and prosecution of Chief James Ibori and his aides.
29. Before the order ex parte was issued by this Honourable Court the 1st Defendant had concluded its investigation and would have charged the said Chief James Ibori to Court but for the fact that he secretly left the country. 30. That the restraining order sought by the Applicants is designed to shield criminal suspects from prosecution and thereby promote corruption and abuse of office with impunity.
31. That I make this declaration in good faith. SWORN TO at the Federal High
Court Registry, Benin City
This…………. Day of ………….. 2007
COMMISSIONER FOR OATHS
FOR SERVICE ON:
THE PLAINTIFFS’ COUNSEL
KEN E. MOZIA & CO.
81 MISSION ROAD,
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN BENIN CITY
SUIT NO: FHC/B/CS/862/2007
1. ATTORNEY-GENERAL OF DELTA STATE )
2. DELTA STATE GOVERNMENT )
3. DR. IFEANYI OKOWA )..PLAINTIFFS/
(Secretary to the Delta State Government) )..APPLICANTS
4. AUDITOR-GENERAL OF DELTA STATE )
1. ECONOMIC AND FINANCIAL CRIMES COMMISSION)
2. THE EXECUTIVE CHAIRMAN, )
(Economic and Financial Crimes Commission) )…DEFENDANTS/
3. THE ATTORNEY-GENERAL OF THE FEDERATION )…RESPONDENTS
NOTICE OF PRELIMINARY OBJECTION
TAKE NOTICE that at the hearing of the Plaintiffs’/Applicants’ Motion on Notice for Interlocutory Injunction dated 8th of October 2007 the 1st and 2nd Defendants will raise a Preliminary Objection upon the following grounds:
i. The Honourable Court lacks the jurisdiction to entertain the substantive suit as it has no judicial power to confer immunity on persons reasonably suspected to have committed serious economic and financial crimes.
ii. The substantive action is incompetent, frivolous, vexatious and an abuse of court process.
a. By virtue of the provision of the Economic and Financial Crimes Act 2004 and Money Laundering Prohibition Act 2004 the 1st Defendant is empowered to investigate allegations of conspiracy, official corruption, misappropriation of public funds, stealing and money laundering perpetrated by past and serving officials of the Delta State Government.
b. The former and current officials of the Delta State Government are not immune from investigation in respect of allegations of sundry economic and financial crimes perpetrated from 1999 to date.
c. The 1st Defendant’s letter Reference No: CR:300/EFCC/ABJ/ASO/ TM.3/Vol.2/321 dated 6th June 2001 is within the purview of the statutory duties and functions assigned to the 1st Defendant by virtue of the Economic and Financial Crimes Act 2004 and Money Laundering Prohibition Act, 2004.
d. The Federal High Court lacks the competence to prevent the 1st Defendant from carrying out its statutory duties and functions.
e. By virtue of the Agreement Between the Government of the Federal Republic of Nigeria and the Government of the United Kingdom of Great Britain and Northern Ireland concerning the investigation and prosecution of crime and the confiscation of the proceeds of crime, 1989 Nigeria is under an obligation to assist the United Kingdom in the investigation of money laundering charges involving Chief James Ibori and his personal aides.
AN ORDER SETTING ASIDE the ex parte order granted by this Honourable Court on the 9th day of October, 2007.
i. There was no urgency warranting the grant of ex parte order on 9/10/2007 on the basis of a letter written to the Plaintiffs on 6/6/2007.
ii. The Plaintiffs suppressed and conceded material facts in the affidavit in support of the motion ex parte.
iii. There ex parte order has shielded former and current public officers in Delta State including those who are not parties to the suit from investigating and prosecution on account of economic and financial crimes committed by them.
iv. The Honourable Court lacks the vires to restrain the 1st Defendant from arresting, investigating and prosecuting criminal suspects accused of engaging in financial and economic crimes.
v. The ex parte order is at large and seeks to preclude the 1st and 2nd Defendants from discharging their statutory responsibilities under the Economic and Financial Crimes Commission (Establishment Act) 2004.