Saharareporters had earlier reported that the trial of James Ibori, the former governor of Delta State before a specially created, Federal High Court in Asaba, Delta State was a sham. We detailed how the Economic and Financial Crimes Commission (EFCC) and the Attorney-General of the Federation, Michael Aondoakaa plotted and schemed to get Ibori off the hook, first by helping him get a favorable ruling before the Court of Appeal in Kaduna headed by Justice Amina Augie, to evacuating Ibori's case from the Federal High Court in Kaduna.
The EFCC even tried to fool the Nigerian public by "appealing" the judgment of the Court of Appeal before the Supreme Court in Nigeria, a mock “appeal” they later forced the lawyer who had filed it for them to withdraw. When Ibori's trial began in Asaba, it was a comedy of sorts as the trial Judge, Justice Awokulehin, the prosecutor, Ibrahim Isiakyu (SAN) and Ibori's lawyers, Daudu SAN all agreed on one point. That was to bring back from the United Kingdom, Ibori's mistress, Udoamaka Okoronkwo, because they claimed she was central to success of their prosecution. But a close perusal of the charges shows that the case could go on independently of Mrs. Okoronkwo. The EFCC and the AGF's office pursued Okoronkwo's extradition with gusto, until a trial magistrate in the UK saw through the ruse and denied their request.
In the course of its investigations, Saharareporters has received a memo written by Ibrahim Isiakyu (SAN) earlier in the year as an “Independent Legal advice" he was commissioned to write by the office of the AGF for the EFCC on the Ibori case. On the basis of the no-case submission he made against Ibori, he was handpicked by Ibori to “prosecute” the case. The EFCC, led by a super corrupt former cop, Farida Waziri, tagged along. This not-so-SECRET memo is reportedly being studied by the judge and would form the bulk of his final decision in discarding the EFCC case against Ibori in Asaba.
Meanwhile, the EFCC officials responsible for gathering evidence and preparing this case have either being suspended, dismissed, transferred or hounded out of the country. Although Ibrahim Isiakyu’s "legal advice" made a big deal out of claiming that the persons accused in the charges were not interrogated, it fell into the same pot, because the legal adviser to the AGF/EFCC also did not interrogate any of the officers involved in this case before reaching the conclusions or final opinion. The legal adviser only relied on a vandalized case file presented to him by Mrs. Waziri and AGF Aondoakaa.
Meanwhile, Ibori's lawyers led by Austin Alegeh has filed a motions asking the judge to dismiss Ibori's case.
Below is the full memo, which details the strategy for the EFCC to cleverly, set Ibori free:
INDEPENDENT LEGAL ADVICE FEDERAL REPUBLIC OF NIGERIA vs JAMES ONANEFE IBORI & 5 ORS CHARGE NO. FHC/KD/81C/2007
WE have done a painstaking reading of the charges preferred against the six accused persons by the Commission. It is on the basis of the charges that I shall proceed to render this legal opinion.
The aim of this opinion is to examine/weigh the charges and the proof of evidence with a view to establishing the chances of a successful prosecution. Suffice it to say that prosecution is a serious issue. Therefore, for there to be a successful prosecution, the authority or body saddled with the power of prosecutorial powers must satisfy itself that there are real and triable issues. For the purpose of this opinion, reliance will be made on the following documents:
1. Further amended charge in Charge No. FHC/KD/81C/2007 containing 170 counts.
2. The proof of evidence filed in court.
3. Documents in the file of the EFCC
For ease of understanding, the counts that are related will be examined together.
CATEGORY 1; COUNTS 1, 2 & 3
These counts relate to transfer of N5m, Nlm and N20m respectively from the account of Delta State Government to the personal account of James Onanefe Ibori at Guaranty Trust Bank. The counts were brought pursuant to Section 14 (1) of the Money Laundering Act, 2004. As regards this issue, there are no concrete evidence in respect of these counts both in the file of the EFCC and the proof of evidence. The Commission had sufficient time and opportunity to ask relevant questions concerning those monies from the 1st accused person, James Onanefe Ibori, the private secretary to the Governor, Oghoro Augustine Ede, Accountant General of Delta State, Cyril Chima Agbele and the Accountant to the Government House, Charles Isiayei. But for whatever reason the Commission glossed over it. Having lost the opportunity of doing so, it is rather late and very difficult to obtain fresh evidence from the persons mentioned above. This is so because the accused
has been charged and the matter is pending before a court of competent jurisdiction.
Flowing from the failure of the Commission to ask relevant questions in this area, it is our humble opinion that the prosecution may fail for lack of evidence. The pertinent question is "Does the mere payment of a government cheque into a Governor's personal account an indication of criminality?" This is certainly not so as there is no law that forbids a Governor from maintaining a bank account like every other citizen of Nigeria.
CATEGORY 2; COUNTS 4-23
These counts relate to payments made to PRIME CHAMBERS. The counts charged the 1st accused of collaborating with Professor Agbe Utuama (presently Deputy Governor of Delta State and under immunity) to illegally withdraw funds from Delta State Government accounts. The charges are punishable under Section 14 (1) of the Money Laundering (Prohibition) Act, 2003. The charges bring certain issues to the fore, viz:
1. The private secretary to the Governor, Oghoro Augustine Ede, and the Accountant to the Government House, Charles Isiayei, both made statements to the Commission confirming payment into the account of the PRIME CHAMBERS. The tellers with which the payment was effected were made part of proof of evidence.
2. However, Professor Agbe Utuama, the owner of PRIME CHAMBERS was not invited to make statement to the Commission in the course of investigation. It is on record that at the time investigation was ongoing, Prof. Agbe Utuama was the Attorney-General of Delta State. He did not enjoy any immunity then. For inexplicable reason, he was never invited to explain the payment made to his chambers. Curious enough, investigation commenced in 2005 and he was not invited to make any statement to the Commission until his immunity in 2007 when he became the Deputy Governor of Delta State.
3. Does the fact that Professor Utuama enjoys immunity under Section 308 of the Constitution of the Federal Republic of Nigeria act as a bar as it relates to the issue of making statement that would assist the Commission in investigation and prosecution when necessary? The answer is certainly "NO".
4. It is obvious that Prof. Utuama was appointed the Attorney-General of Delta State and he handed over the day to day management of the office. Nobody in the chamber was invited during investigation.
5. There was no reference to payment directly to the 1st accused.
It is our humble opinion that based on the issues highlighted above, there is no way charges on those counts would stand.
CATEGORY 3; COUNTS 24 - 34
These counts were brought under Section 14 (1) of the Money Laundering (Prohibition) Act, 2004. According to the counts, various sums of money amounting to N108.2m were transferred between 10th May 2005 and 19th December, 2005. It must be pointed out that these charges failed to state the origin of the funds, where it was transferred, and from what accounts they were transferred. Without establishing these ingredients, it is my opinion that prosecution under these counts for money laundering cannot succeed. More so, there is no statement by any person relating to these counts. These charges therefore, are nebulous and must fail because of its inability to establish the essential ingredients of money laundering.
Lastly, there is nowhere evidence exists to show how the 1st accused person benefitted from any such transfer. Prosecution under these counts may fail.
CATEGORY 4: COUNTS 35 - 49
These counts were brought under Section 14 (1) of the Money Laundering (Prosecution) Act, 2004. The counts relate to a total amount of N94, 639,172.00 alleged to have been transferred on various dates between 2005 and 2006.
Again, the counts as contained in the charge sheet failed to address pertinent issues needed for prosecution to succeed. For instance, the statement of account of Silhouette Travel & Tours Ltd was provided in the proof of evidence but no Director or staff of the company was invited in the course of investigation to provide the evidence needed to sustain prosecution. There is nothing in the Commission's file to indicate that any person from the company was invited in the course of investigation. Surprisingly, there were computer printout of bank statements of the company containing the transaction it had with Delta State Government and other clients in the course of its business. The question, which remains unresolved, is how the Commission was able to get the computer printout of bank statement without a single statement from anybody connected to the company in the file.
Another issue that is also injurious to the Commission in its bid for prosecution is the fact that statement of Charles Isiayei, the Accountant to the Government House confirmed that payments were made into the accounts of Silhouette, Wings Aviation and Premium Shuttle Airlines. The statement shows that the money alleged to have been laundered by the 1st accused person were actually travel related expenses.
Lastly, the computer printout of the bank statement of Silhouette did not state that the 1st accused benefited from the transaction in any way.
It is our opinion that prosecution on this ground will not succeed.
CATEGORY 5: COUNT 50
This count is charged under Section 14 (1) of the Money Laundering (Prohibition) Act, 2003. The substance of the charge is that the 1st accused collaborated with Charter House Project and Investment Ltd and Adebimpe Pogoson to conceal the sum of N20m illegally withdrawn from the account of Delta State Government. With regard to this charge, there exist several flaws in the investigation. The reasons for holding this view are not farfetched.
First, the count failed to indicate the account where the said N20m was transferred from, the recipient and the mode of concealment. At best, this count is fishy and speculative. It is an elementary principle of law that, wild and spurious speculation has no place in criminal prosecution.
Furthermore, no statement was taken from the directing minds of Charter House Project and Investment Limited. Even Adebimpe Pogoson and the 1st accused person who are the principal actors according to the count did not furnish any statement to the Commission in the course of investigation. One then wonders where the charge emanated from.
I will therefore, not mince words in coming to the inevitable conclusion that prosecution as it relates to this count will certainly not succeed.
CATEGORY 6; COUNTS 51 - 65
The counts here were brought under Sections 16 and 17 (c) of the Money Laundering (Prohibition) Act, 2003. The counts charged the 1st accused with procuring the 2nd accused to retain in her account on his behalf, money withdrawn from Delta State Government accounts amounting to N190, 125,000.00.
It is interesting to point out that statements obtained in the course of investigation from Charles Isiayei the Accountant to the Government House was to the effect that payments were made on the instruction of the Secretary to the State Government, Mr. Emmanuel Uduaghan and such payments were termed "security vote".
Similarly, Ede Oghoro also confirmed that the 2nd accused has companies that supplied variety of goods to Delta state Government and the payment (which now form the counts contained in the charge sheet) were in respect of such contracts. (See page 18 of the proof of evidence)
In trying to establish the fact that there was nothing fraudulent in the business relationship between the Delta State Government and the 2nd accused Udoamaka Okoronkwo (nee Onuigbo), Ede Oghoro submitted various contracts executed by Sagicom Nigeria Ltd, Saagaris Properties Ltd and Rivebbed Agro Allied Ltd which are companies floated by the 2nd accused. The companies at different times supplied cutleries, wines and spirits as well as vehicles to Delta State Government, amounting to over N1.82bn. Ede Oghoro confirmed in his statement that all contracts were executed and the ordered items supplied to Delta State Government. It is surprising that all the documents evidencing such payments were excluded from the proof of evidence. Suffice it to say that the action of the Commission in excluding the relevant documents evidencing the execution of contracts by the 2nd accused raises the presumption under Section 149 of the Evidence Act which is to the effect that; had the Commission produced the documents it withheld such would be adverse to its interest.
Flowing from the above, the only plausible conclusion one can draw is that prosecution is bound to fail on this ground.
CATEGORY 7; COUNT 66
This count is charged under Section 15 (2) (b) of the Money Laundering (Prohibition) Act, 2004. In the count, the 1st accused was charged with offering the sum of US$15m to officials of the Commission in order to influence investigation of the allegation against him.
This count raises a variety of issues which I shall proceed to give an in-depth treatment. First, it is interesting to point out that the US$15m was alleged to have been offered on 25th April, 2007 but the statement of the witnesses to whom the said gratification was made namely: Mallam Nuhu Ribadu (the Executive Chairman, EFCC), Ibrahim Lamorde (the Director of Operations, EFCC), James Garuba (a staff of the Central Bank of Nigeria seconded to the EFCC) were made on 12th December, 2007 whereas, the charges against the accused were filed at the Federal High Court, Kaduna on 11th December, 2007. It is difficult to understand why these statements were not made for well over a period of six months. The statements would appear to be an afterthought. The time lag between the act of giving money to influence investigation and the making of the statements raises a suspicion that the witnesses concocted stories in order to secure the 1st accused prosecution and possible conviction.
With due respect, our law does not operate that way. For instance, any doubt or discrepancy in the statement of witnesses to a crime is always resolved in favour of the accused.
In addition, it is trite law that charges preferred against a person accused of committing a crime flows naturally from the statements obtained from witnesses to the alleged crime. Thus, where statements are volunteered by witnesses after the charges and proof of evidence are already filed in court, such statements are excluded because they are inadmissible. Regrettably, that was the scenario that played itself out in this charge.
Also, the statements furnished by Mr. James Garuba, Ibrahim Lamorde and Mallam Nuhu Ribadu appear to be contradictory, conflicting and inchoate. For instance, the statement of Mr. Garuba states that he was informed by Lamorde that the said sum was recovered from an ongoing investigation but he was not informed of the specific investigation. (Page 1329 of the proof of evidence) In the same vein, Lamorde stated that Mallam Nuhu Ribadu informed him that there was money given to him and the Commission which should be lodged at the Central Bank of Nigeria. (See page 1331 of the proof of evidence)
Similarly, Mallam Nuhu Ribadu stated that the 1st accused person informed him that he had money to be collected from the residence of Andy Uba. (see page 1333 of proof of evidence) No reference was made there by the three witnesses to the words like "gratification", "bribe" or "to influence an ongoing investigation" in favour of the 1st accused.
Mallam Nuhu Ribadu claimed that he was at Andy Uba's house when Lamorde and Garuba came to collect the money. But a perusal of the statements of Garuba and Lamorde made it clear that he was not there. In their statements, the duo stated the persons present when they went to collect the money as Andy Uba, Lamorde, mobile policemen attached to the Commission and himself. He described in detail the weight and colour of the bag containing the money and the car used but he did not acknowledge the presence of Mallam Nuhu Ribadu.
It is also surprising that no statement was taken from Andy Uba from whose house the money was recovered and who handed the money over to Lamorde and Garuba. He was central to the entire transaction yet no statement was taken from him.
In the light of the above, may I humbly submit that the issues raised here are weighty enough to frustrate any prosecution. We are of the opinion that prosecution would be an exercise in futility if embarked upon as regard this count.
CATEGORY 8 - COUNTS 67- 106
These counts are charged under Section 14(1) of the Money Laundering (Prohibition) Act. According to the counts, the 1st, 3rd, 4th and 5th accused collaborated with one another to conceal the genuine origin of monies illegally withdrawn from the account of Delta State Government and used to offset a loan granted by the United Bank of Africa (UBA) to the 5th accused for the benefit of the 4th accused person.
It is instructive to note that 1st accused resigned his directorship in the 4th accused company prior to taking up office as Governor of Delta State. Furthermore, 1st accused was never a shareholder/director in the 5th accused company. It is also on record that the 3rd accused was a Director of 4th accused and a sole signatory to the account of 5th accused.
There were statements made by several officers of Delta State Governor including Charles Isiaye(the Accountant to Government House), Oghoro Augustine Ede(The Private Secretary to the Governor ) and Cyril Chima Agele (Accountant General of Delta state) and Dr. Emauel Uduaghan (then secretary to state Government and now Governor of Delta State). The investigating officers failed to ask any of these persons the reasons for the payments made to Baineox Limited accounts and to get details of projects executed by the company. Statements made by these persons also indicated clearly that vouchers are usually prepared before payments were made. The vouchers were never included in the proof of evidence.
It must also not escape mention that one Awakanoye a staff of Standard Trust [now United Bank of Africa (UBA)] confirmed that 5th accused was given a loan by the Bank for property development and that the loan has been fully repaid. The statement he made, indicated that lodgments were made to the 5th accused person's account prior to the grant of the loan and thereafter.
The first accused was not asked any question pertaining to this issue when the investigation team visited him on 4th July 2008. The 2nd accused who was a Director of the 4th accused and sole signatory to the account of the 5th accused was again not available nor confronted with these allegations despite making over four statements under caution to the investigating team. The company, MER Engineering was acknowledged to be executing contracts in Delta State for which payments were made. The Directors of the 5th defendant were not invited to explain details of the transaction in order to establish the actual sum.
In the light of the above it is my humble opinion that there was absolutely no evidence that monies were illegally withdrawn from the account of Delta State Government as alleged in the counts under consideration. The case of the prosecution under this head would fall like a pack of cards.
CATEGORY 9: COUNTS 107-122.
These counts were charged under section 14(i) of the Money Laundering (prohibition) Act, 2003 and 2004 variously.
Like all the counts examined, there are several problems associated with them. First, the amount in respect of these counts cannot be clearly ascertained in view of the duplication of the same amount in different counts.
There is nothing in the court to suggest that the transfer of money by first and fourth accused person's simplicity raises any issue of criminality or money laundering. There is no evidence that the said sums of money originated or emanated from Delta State Government accounts. The evidence on record is that 4th accused had business relationship with Shell and Chevron, both oil servicing companies, for which payments were made both in domestic and foreign currencies.
In addition, there is evidence that first accused resigned as a Director of the fourth defendant in 1999 before he assumed office as governor of Delta state. It is also on record that the fourth accused was run by the third accused and one Adebimpe Pogossoon and not by the first accused.
Similarly, the counts showed no evidence that the said funds belonged to Delta State Government or any other illicit source.
One fact that must not escape mention is that when the first accused resigned from the fourth accused in 1999, he did not relinquish the shares held by him. Thus, while in office as a Governor, nothing stops the company from paying his dividends and entitlements into the account the directing minds of the company identify as belonging to him. After all, there is no law that forbids a governor from having shares in a company. Also, there exists no law that demands that a governor, upon taking his oath of office, must relinquish the shares held by him in a company. It is submitted that what the law demands is resignation as director and the intention of the law to avoid conflict of interest and an unnecessary distraction between attending to state issues and the affairs of the company in which he is a director.
Another fundamental flaw that arose in the course of investigation was that no statement was obtained from directing minds of shell and Chevron with a view to establishing the veracity of the statement made by the third accused as regards payments made for contracts, with them.
The absence of statements thereby created a huge lacuna in the investigation, which ultimately made the counts being unable to sustain the charge.
CATEGORY 10: COUNTS 123 - 133
It must be stated that at the outset that these counts were not included in the original charge filed against the 1st accused. The Declaration of Assets form was filled by the 1st accused after the charges had been filed. The charges were filed on the 11th of December 2007; warrant of arrest was executed on the 12th and was arraigned on the 13th of December 2007.
This act by the Commission amounts to a flagrant breach of the procedure laid down by law. It is submitted that Section 27 (3) of the EFCC Act under which the counts were brought cannot sustain the charge. The reasons for coming to that conclusion are not far fetched.
First, a community reading of the Section 27 (3) of the Act envisages that sufficient opportunity must be given to the accused to make full and frank disclosure of all his assets. The Commission will only embark upon investigation after the accused has filled the necessary forms prescribed by the Act. This, the Commission failed to do. The Declaration of Assets form was only given to the 1st accused after charges have been filed in court. In the course of making his statement, the 1st accused stated as follows: "I will as much as possible indicate here to the best of my recollection what is... unable to say when, where and amounts or no, unless I check my records". (See page 749 of the proof of evidence)
In addition, the accused stated thus: "items 12, 17, 18, 19-26 are beyond my recollection without checking my records. This I can do and deal with in due course". (See page 753 of the proof of evidence)
Considering the above comments made by the 1st accused person, the Commission cannot be heard to say that the accused was charged for failing to make full disclosure of his assets. The 1st accused should have been allowed access to his records to enable him refresh his memory and have a recollection in order to get all the required facts. It is a fact of such notoriety that a count will take judicial notice that nobody can do without records recall and confirm with exactitude all his assets and liabilities.
These obvious flaws on the part of the Commission would make prosecution in respect of the counts brought under this head an exercise in futility.
CATEGORY 11; COUNTS 134 - 147
These counts are charged under Section 14 (1) (a) of the Money Laundering (Prohibition) Act, 2003 and 2004 respectively. The counts alleged that the 1st and 2nd accused persons transferred a total sum of £385,000.00 and $399,000.00 to various accounts and for various purposes.
The counts stated that the funds were illicit but it failed to explain facts and circumstances from which such conclusion was drawn. There is also nothing to show in the counts that the funds were drawn from Delta State Government account. It is also in the proof of evidence that the 2nd accused executed contracts and was duly paid by Delta State Government in respect thereof. It is strange that in the course of investigation and interview, issues relating to these specific transfers which now constitute the charge were never raised. (See page 216 of proof of evidence) One then wonders how they found their way into the charge sheet.
In addition, the charge failed to specify sums and to whom such transfer was made.
It is our humble opinion that the transfer of money by 1st accused into his own account with Barclay's Bank as contained in the charge cannot be regarded as money laundering as there was no attempt to conceal the origin and destination of the money. That being the case, these counts cannot be successfully prosecuted.
CATEGORY 12- COUNTS 148-167
These counts are charged under section 16 of the Money Laundering (Prohibition) Act, 2003. The counts relate to monies in the second accused person's account, which were alleged of Delta State Government. The entire amount contained in the counts is N248, 325m.
As regards these counts, it must be stated that there is abundance of evidence that the second accused executed the contracts ad was duly paid. It appears from the counts under consideration, these were for the monies paid for the contracts. This certainly ought not to be the case. There is also no evidence that the money was utilized for the benefit of the first accused. The statement of account shows in cogent and coherent terms how the money was utilized. Worse still, the second accused was never questioned with respect to the acts contained in these counts.
It is in my conclusion therefore, that these counts lacks the essential ingredients needed for prosecution under section 16 of the Money Laundering Act, 2003 and therefore, it must fail.
CATEGORY 13- COUNTS 168-170
The counts under this head alleges that the sixth accused person, a duly registered Limited Liability company, violated section 16 of the Money Laundering (Prohibition) Act, 2003. In the counts, the 6th accused was charged with retaining money in its personal account on behalf of the first accused, which was withdrawn from the Delta State Government account. The amount involved is computed to be N21, 500,000:00.
It must be pointed out that these counts lack the necessary legal basis a background needed to sustain a conviction. For instance, legally speaking, incorporated companies do not operate personal accounts. Rather, accounts belonging to incorporated companies are designated as 'corporate account'. It is notorious fact that diction, which is the choice of words, is the heart of law. Thus, a case can either succeed or fail based on the way words are used. Thus, the use of the word 'personal account' has ruined the chances of the prosecution in relation to these counts. In addition, the bank, which the money was retained, was never mentioned in the courts.
It is rather strange that a company used by the second accused person to execute contracts on behalf of Delta State Government should be charged for retaining money paid into the company's account for contracts executed. To my own mind, the only way the company would have been charged is when there is evidence of failure to perform the contract awarded to it after Delta State Government had paid money. But that was not the case. The statement of Ede Oghoro laid bare any doubt as regards the performance of the contract. According to him, the sixth accused was one of the companies floated by the second accused and was paid after executing the contracts it entered with Delta State Government. There is nowhere evidence exists to prove that the first accused derived any benefit pecuniary or otherwise. Against the backdrop of the reasons adduced above, it is crystal clear that prosecution will certainly fail.
It must be noted that in the course of carrying out this review, several issues were brought to the fore. I shall proceed to outline them as follows:
1. A perusal of the casefile as well as the proof of evidence filed in Court revealed that there was no investigation report detailing the activities of the investigation team. A report is now being written.
2. Several documents provided by persons who made statements to the Commission in the course of investigation were omitted both in the casefile and the proof of evidence. Instances of these omissions include documents submitted by the directing minds of Silhouette Travels and Tours Limited, the companies linked with second accused namely Sagicum Nigeria Limited, Saagaris Limited and Riverbbed Agro Allied Limited were for inexplicable reasons missing in the casefiles.
3. Persons whose statements would have been required and without whose statement proper investigation could not have been said to have been done were never taken. Examples abound in the failure to take the statement of Andy Uba, the directors of Silhoueete Travels and Tours, Adebimpe Pogosn in connection which is owned by Prof. Amos Utuama, to mention a few were never obtained. This deliberate omission raises the presumption under Section 149 of the Evidence Act which is to the effect that evidence required for proof of essential ingredients of an offence is not provided or deliberately withheld by the Prosecution; the court will presume that such evidence if produced would be favourable to the accused person(s) and adverse to the prosecution. The court would then proceed to resolve the doubt thereby created in favour of the accused person(s)
4. A review of the counts shows that there appear to be an impression that the amount involved in the charge was extremely high. For instance, the amount of US$400,000.00 allegedly paid to Stan Hope Investment account at PFB Geneva Bank on the 29th November, 2004 and charged as count 114 is the same amount charged in count 119 as US$190,000.00 and 120 as US$210,000.00. For the sake of clarity, the total amount in count 119 and 120 is the same US$400,000.00 already charged in count 114. This situation was repeated in several of the other counts in the charge sheet. This made the charge defective for duplicity. In addition, dates in which payments were made into the account were altered and changed as if they related to two payments.
5. It is pertinent to mention that the 3rd accused person, Chiedu Ebie was originally listed as a prosecution witness in the original charge filed on the 11th December 2008. This was a clear indication that the investigation did not reveal any capability, complicity or criminality against him. It is rather strange that without new investigation and the emergence of new statement of facts as could be seen in the casefile and the proof of evidence, he was surprisingly made an accused person in the amended charge. The logical inference that can be drawn from that action of the commission is that he refused to give false testimony aimed at implicating the first accused. Thus, Chiedu Ebie's joinder is designed purely as a punitive measure. This singular act taints the entire prosecution witnesses who would be considered by the count to be under similar threat and are giving evidence to prevent them from being made accused persons.
6. It must also be emphasized that for investigation that lasted two years, the absence of critical evidence to establish several of the counts in the charge cannot be explained away. For instance, the Prof. Amos Utuama, who at that time was a Commissioner of Justice and Attorney General of delta state, owned Prime Chambers. At the time investigation commenced, he did not enjoy any form of immunity until 29th May 2007. It is untenable that charge relating to Prof. Amos Utuama as "Now under immunity' It must also be noted that Prof Amos Utuama like other political office holders, was given clearance to run as the Deputy Governor of Delta State.
7. It is instructive to note that on the 4th July, 2007, the investigation team visited the first accused but rather than confront him with these allegations, they merely asked him questions relating to the manner in which he operated his government whilst in office. He was asked to make a statement not under caution. This indicates in law that he was not merely providing information to the Commission on the operation of state government.
8. Curious enough, after that statement, there was no other statement obtained from him under caution until after charges were filed. The second statement obtained under caution after charges were filed would certainly not be admissible in count.
9. The Frequency of amendment of the charges and the presence of documents in respect of matters not charged in the proof of evidence filed before the count, the only plausible conclusion one can draw is that the entire case was ill prepared and hastily rushed to court despite obvious lapses.