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London Court of Appeal to rule next month on admissibility of EFCC evidence against IBORI's wife

December 30, 2008

The legal battle between the Nigerian Attorney-General and Minister of Justice, Michael Aondoakaa, and James Ibori's team of lawyers on the one hand and lawyers representing the UK Crown Prosecution Service (CPS) on the other hand as to whether the evidence provided to the CPS by the EFCC will be used in the prosecution of Ibori's wife, his sister and his personal assistant for their role in the looting of the Delta State treasury has moved to the Court of Appeal in London.

Yesterday, His Honor Judge Rivlin QC, sitting in the Southwark Crown Court, delivered his judgment on the application brought by Ibori's lawyers following Mr. Aondoakaa's letter objecting to the use of the evidence provided to the CPS by the EFCC during the tenure of Nuhu Ribadu and before Yaradua's pro-corruption government reduced the once internationally acclaimed anti-graft to an international laughing stock.



With regards to the prosecution of Mr. Ibori's sister, Mrs. Christine Ibori-Ibie, on a four count charge of conspiracy, fraud and money laundering and the prosecution of Mr. Ibori's former personal assistant, Ms Adebimpe Pogoson, on an eight count charge of conspiracy, fraud, money laundering and mortgage fraud, Judge Rivlin distinguished the EFCC evidence based on the timing of the request for mutual legal assistance by the CPS.

According to the judge, the evidence obtained following the request made in 2006 to the former Attorney General, Mr. Bayo Ojo, will be admissible in the prosecution of Mrs. Ibori-Ibie and Ms Pogoson. The judge stated that the admissibility of the evidence is because Mr Ojo never objected to the use of the evidence by the CPS.

On the other hand, the evidence supplied by the EFCC following the request sent to Mr. Aondoakaa on 30 August 2007 will not be admissible because of Mr Aondoakaa's bitter objection to their use in the prosecution, the judge ruled.
 
Although the CPS lawyers informed the judge that even if the EFCC evidence is excluded there will be sufficient evidence to prosecute Mrs. Ibori-Ibie and Ms Pogoson, they nevertheless obtained the judge's permission to appeal his decision to exclude the second tranche of evidence to the Court of Appeal.

The CPS insists that there is nothing in the Mutual Legal Assistance Treaty that requires that evidence supplied by the EFCC be authenticated by Mr. Aondoakaa before they can be used in the prosecution, as argued by Ibori's lawyers.
 
According to the CPS lawyers, the only authentication provided for in the Mutual Legal Assistance Treaty, is in Article 10, which provides that "any documents or other material supplied in response to a request for assistance shall be certified or authenticated to such extent and in such manner as may be required by the Requesting Party." The Requesting Party in this case is the CPS and not the Nigerian Attorney-General.
 
The CPS lawyers also argued that the EFCC has wide independent powers under the Economic and Financial Crimes Commission (Establishment) Act 2004 (the EFCC Act) that enable them to provide evidence to the CPS. They referred specifically to section 6(j) of the EFCC Act that provides that the EFCC has the responsibility for "collaborating with government bodies both within and outside Nigeria carrying on functions ... of the Commission concerning the identification, determination, of the whereabouts and activities of persons suspected of being involved in economic and financial crimes and the movement of proceeds or properties derived from the commission of economic and financial and other related crimes". The lawyers also referred to section 6(k) that provides that the EFCC shall be responsible for "dealing with matters connected with the extradition, deportation and mutual legal or other assistance between Nigeria and any other country involving economic and financial crimes".
 
With regards to the prosecution of Mr. Ibori's wife, Mrs. Theresa Ibori, on four counts of conspiracy and money laundering, Judge Rivlin ruled that since Mrs. Ibori was not mentioned in either of the letters of request for mutual legal assistance none of the evidence supplied by the EFCC will be used in her prosecution.
 
Mrs. Ibori was not named in the letters of requests because she was only arrested on 1 November 2007, a few months after the second request was dispatched to Mr. Aondoakaa on 30 August 2007. Mrs. Ibori-Ibie, Ms Pogoson and Ms Udoamaka Okoronkwo, on the other hand, were arrested on 12 April 2006.
 
However, CPS lawyers informed the judge that there is sufficient evidence to prosecute Mrs. Theresa Ibori even if the EFCC evidence were to be excluded. They pointed out that Mrs. Ibori and Mr. James Ibori were once taken to court in London for failing to pay their debt and that both were also convicted of petty crime in the 1990s (a reference to their conviction for theft at Isleworth Crown Court, West London on 25 January 1991). Yet Mrs. Ibori managed to buy a property worth £2 million in Hampstead despite her modest income after her husband became the Governor of Delta State.
 
Nevertheless, the CPS also obtained the permission of Judge Rivlin to appeal the decision to exclude the EFCC evidence in the prosecution of Mrs. Ibori to the Court of Appeal.
 
All the appeals are due to be heard by the Court of Appeal in the first week in December 2008. The hearing of the appeals was expedited to facilitate the prosecution of all three accused persons due to commence on 5 January 2009 at the Southwark Crown Court. It will be recalled that in October last year the Court of Appeal in London overturned the decision of Judge Goymer of the Southwark Crown Court to vacate the freezing order obtained by the CPS against Mr Ibori $35 Million worldwide assets said to include a Bombardier private jet, properties in London as well as money in bank accounts. Judge Goymer was persuaded that there was insufficient evidence that the assets were the proceeds of crime thanks in part to a misleading letter provided to Mr Ibori’s lawyers by Mr Aondoakaa. In the letter Mr Aondoakaa alleged that Mr Ibori “was investigated in connection with his ... activities whilst in office" despite the fact that the investigations were ongoing. He also stated that Mr Ibori "has not been charged to any court of law in Nigeria in respect of any offence relating to money laundering" but concealed the fact that Mr Ribadu had informed the Senate on September 28, 2006 that Mr Ibori would be prosecuted by the EFCC once he lost his immunity to prosecution. But the Court of Appeal restored the freezing order, which remains in force.
 
Yesterday's ruling by Judge Rivlin also puts Mr. Aondoakaa in the spotlight as the judge advised the CPS to send him a letter requesting his formal permission for the use of the EFCC evidence.

When the judge was informed that Mr. Aondoakaa will be attending a formal engagement in London in the first week of December, he advised the CPS to seize the opportunity of that visit to formalize issues with regards to the EFCC evidence.

One British legal analyst told SaharaReporters that, should Mr. Aondoakaa refuse to grant the permission or cancel his proposed visit in order to evade the request – which will not be surprising given his antecedents – he could find himself in trouble with the British authorities.
 
Leading the pro-Ibori team in court to support Mrs. Ibori, Mrs. Ibori-Ibie and Ms Pogoson throughout the hearing was the Delta State Attorney General and Commissioner of Justice, Dafe Akpedeye (SAN). He flew all the way to London, presumably with public funds, to support people accused of stealing from the state he is supposed to be Chief Law Officer for.

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