‘Conscience is an open wound: only the truth can heal it’-Usman Dan Fodiyo.

The Nigerian Tribune newspaper, in its edition of Monday 23 April 2012 carried a story titled- ‘Ibori’s Case- My Conscience is Clear- Justice Awokulehin’. In the body of the story proper, the following quote is attributed to His Lordship, Justice Awokulehin-

 ''Let me give you an instance, I read a column in This Day newspaper over my ruling in the case involving James Ibori. The columnist, in his write-up said he wondered what will be running through my mind now that Ibori had admitted guilt in London to the case I exonerated him of.  I am always guided by the submission of Justice [Dahiru] Musdapher who said that one should not mind what people say as long as your conscience is clear in your decision. What the Nigerian law says over criminal case is that such allegations must be proved beyond reasonable doubt which is different from British law which is based on inference. What happens there is to assume...''

It is understandable that Justice Awokulehin might be under enormous, soul searching pressure given the fact that James Ibori actually pleaded guilty in London to set of charges for which he (Awokulehin) discharged him in Asaba. It is perhaps this pressure that persuaded him to disregard the judicial norm of not giving direct comment on a case for which a Judge had been involved, culminating in the above quote attributed to him. However by his comment Justice Awokulehin has not only given credence to the belief by many that his discharge of Ibori was perhaps suspicious, he has also exhibited a grave and worrying lack of understanding of the rudimentary of the British Criminal Justice System which substantially form the basis of Nigeria’s own Criminal Procedures and Justice System. To paraphrase Mark Twain, it is better for Justice Awokulehin to have maintained his silence over the Ibori matter and let people speculate on why he discharged him rather than give an explanation which only confirm certain suspicions.

To start with, his Lordship was in fact patently wrong when he asserted that unlike in Nigeria where the prosecution is expected to prove criminal cases beyond reasonable doubt; in the UK defendants are convicted based on inferences and assumptions. It beggars belief that this is attributed to the judge and it is hoped that perhaps there is a specific context to the statement that is not ordinarily clear in the newspaper quote. For the avoidance of doubt, the UK criminal procedural system is not materially different from Nigeria’s. In the UK, the prosecution is still expected to prove criminal cases beyond reasonable doubt. However in the UK, as in Nigeria, Courts are allowed to draw inferences when necessary in order to prove or disprove a particular assertion. Courts all over the world do this on a daily basis: for example, adverse inferences might be drawn (subject to statutory and judicial limitations) against a defendant who failed to mention specific facts which he later seeks to rely on at his trial; or when a defendant chooses at trial not to give oral evidence or submit himself to prosecution’s cross examination. The list is not exhaustive and the principle is so trite and notorious as not to require any elaboration. For Justice Awokulehin to seek to justify his discharge of Ibori in Asaba and his subsequent guilty plea in the UK on the basis that the burden of proving a criminal case is lower in the UK than in Nigeria is, putting it respectfully, unfortunate.

Justice Awokulehin stated that in Nigeria the prosecution must prove the case against a defendant beyond reasonable doubt. Fine- the only trouble here is that when he handled the Ibori case, he did not give the prosecution the opportunity to prove the case against him beyond reasonable doubt- he threw out the case without Ibori having to defend himself.  It would be recalled that James Ibori, together with Udoamaka Okoronkwo, Chiedu Ebie, Mer Engineering Limited, Bainenox Nigeria Limited and Sagicon Nigeria Limited were, on the 12 March 2008, arraigned before the then recently created Federal High Court, Asaba Division of Delta state presided over by Justice Awokulehin on 170-count charges of money laundering under section 14{1} of the then Money Laundering (Prohibition) Act 2004 {the matters were commenced at the Kaduna division of the court before being strangely transferred to Asaba}. The allegations generally related to unlawful transfer of monies belonging to the Delta state government into private accounts of James Ibori and his associates and companies. On the 28 July 2009, the defence counsel, via a Motion on Notice urged the court to strike out all the charges against the defendants as the case for the Prosecution, even taken at its highest, did not disclose a prima facie case against the defendants. Justice Awokulehin, after careful consideration of all the evidence against the defendants, agreed with the accused and the charges against the defendants were discharged. Courts in Nigeria and other Common Law jurisdictions have always treated application to discharge a defendant without calling all the evidence with high degree of circumspection. The reason for this is clear- during ‘half time submission’ what the prosecution needs to have done is only to show a prima facie evidence against the defendant. The bigger test of proving the case beyond reasonable doubt only comes into play at the conclusion of the trials when all the parties have concluded their cases. Thus even if there were issues with the way and manner the prosecution presented the case, unless the case was totally hopeless, it is imprudent for a Judge to throw out a case against defendant without listening to and considering all the evidence. It is submitted that in Nigeria, the Court should also take Judicial Notice of the country’s war against corruption and should not allow legal technicalities be used to defeat the spirit of the laws. The power to discharge a defendant at this stage of the proceeding is a discretionary one which the Court is obliged to exercise both judicially and judiciously. It is in this circumstance that Justice Awokulehin may feel that he had discharged Ibori, perhaps too hastily.

Another point which undermines Justice Awokulehin’s discharge of Ibori is the fact that Ibori actually pleaded guilty at the London trial. He spared the prosecution from having to prove the case beyond reasonable doubt; he held up his hands and said- ‘yes, I stole billions of Naira from the people of Delta state’. By that singular action, Ibori condemned Justice Awokulehin and the Nigeria’s Criminal Justice process that discharged of him on the same facts. Justice must not only be fair, but must be manifestly seen (by the people) to be fair. No matter the legal technicalities involved; no matter the explanation by Justice Awokulehin, it is almost impossible to persuade an average member of the public in Nigeria that something isn’t wrong with a judicial process that enabled Ibori to escape justice in Nigeria only for him to plead guilty on the same set of facts overseas.

This writer suspects that it is the fact that Ibori actually pleaded guilty, rather than being convicted after trial that must hurt Justice Awokulehin more than anything. Had Ibori maintained a not guilty stance and was convicted after trial, apologists of our Criminal Justice System might offer a number of platitudinous spin to explain his conviction: he was convicted after a jury trial which we don’t have in Nigeria; the laws in the UK are pro-prosecution; he was convicted based on inferences etc. By pleading guilty and sparing the prosecution the trouble of having to prove its case, Ibori sent a clear message to Justice Awokulehin and our Criminal Justice System- that he managed to fool and ride roughshod over them. 

This writer is pleased that Justice Awokulehin can sleep well aftermath of the Ibori London guilty plea. It is nice to read that his conscience is clear over the matter for conscience is the one noumenon which is incapable of spin; which we are unable to suppress as human beings. Conscience continues to prick us on our actions and like Dan Fodiyo said all those years ago, conscience is truly a cancerous wound which can only be cured by the truth.

Adebayo Kareem, a Solicitor-Advocate, is contactable at [email protected]


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