Vanguard presents the public with a summary of the case of the prosecution in the on-going saga of Governor James Onanefe Ibori. The prosecution’s case, woven around an identification endeavour, whether the James Onanefe Ibori convicted on September 28, 1995, is the same as the present day Governor James Onanefe Ibori of Delta State. The defence is just about making its points, this report presents a synopsis of the case made by the prosecution:
An identification trial ordered by the Supreme Court early this year to ascertain the identity of one James Onanefe Ibori convicted in charge number CR\81\95 commenced before Justice Hussein Murkhtar of an Abuja High Court early this month.
The trial has been replete with puzzling revelations, accusations, counter-accusations, hostility, drama and theatrical displays.
An array of Nigerian legal practitioners qualified to compete with their shining colleagues anywhere in the world by all standards, are involved in the conduct of the trial, displaying their legal wizardry to undo one another.
Notwithstanding that they exchanged pleasantries, smiles and handshakes before and after daily proceedings, it is another thing entirely at the bar as they attacked one another ferociously each time the interests of their clients clashed.
And witnesses brave enough to jump into the witness “ring” for the purpose of giving evidence in the case, are not finding it funny.
Everything each of them says is scrutinised, notwithstanding the fact that the evidence they are giving is about events that occurred several months or years back.
Not even their language of giving their testimony is spared.
At least three witnesses had given evidence from the witness box in the case both for the prosecution and the defence.
Some of them who started off their presentation of evidence on a coherent note were drilled by lawyers to look like ones who had temporarily lost their sanity.
Saliva dried up occasionally in witnesses’ mouths. Collars of witnesses’ shirts got wetted inside the witness box. Voices that were loud and stable when evidence-in- chief commenced, became shaky, wobbling and worryingly low under cross-examination.
Of course, the trial judge had to permit witnesses to drink water from the witness box when they so indicated.
But for the seeming adversarial legal system operated in Nigeria, probably the trial judge, Justice Hussein Murkhtar, who looked overflowing with kindness, would have assisted some of the hapless witnesses who were literally ransacked in and out by lawyers with questions to ascertain the veracity of their testimonies.
The judge was harm-strung. Because a judge under our system is at best an attentive listener to all that is said on both sides, he is not an investigator. He speaks mainly to deliver judgments. Which is why his passive role emphasises the active role of counsels representing both the prosecution and the defence in the case.
While the scope of this attempt will not cover the evidences already given by all the witnesses since this trial began, nevertheless, this write-up shall examine in details the case of the prosecution so far.
Since the trial started, the case of the prosecution is that without any iota of doubt, the James Onanefe Ibori tried, convicted and sentenced to one year imprisonment with an option of N1,000 fine on September 28, 1995, is the present Governor of Delta State, Chief James Onanefe Ibori.
Chief Gani Fawehinmi (SAN), an indefatigable and fearless lawyer, leading the prosecution team, poked legal fireworks for two weeks to prove his case that, really, it was Governor James Ibori of Delta State that was convicted in 1995.
To prove his claim, he caused subpoenas to be issued on six persons including a former Area Court judge, Justice Awwal Yusuf that sat in Bwari where he convicted one James Onanefe Ibori on September 28, 1995; Chief Judge of the Abuja High Court, Justice Lawal Gummi; Director-General of the State Security Service; Secretary of the National Population Commission, a key officer of the Independent National Electoral Commission (INEC) and Governor James Onanefe Ibori himself.
Chief Fawehinmi (SAN) explained that he invited Justice Yusuf to speak on his controversial record of proceedings of September 28, 1995, his relationship with Governor James Onanefe Ibori, if any, and identification of the same James Onanefe Ibori he convicted nine years ago if he could still recognise him.
Justice Gummi was expected to clear the air on the report of an independent investigation he conducted to probe an allegation that some staff of the Federal Capital Territory judiciary tampered with records of court proceedings of September 28, 1995, a day one James Onanefe Ibori was summarily convicted and sentenced.
The Secretary of the National Population Commission (NPC) was expected to produce before the court some vital documents in his custody to show if during the last two or three censuses conducted in the country, there were more than one person of Delta State origin or Nigeria that answers James Onanefe Ibori as at the time the conviction was made.
INEC and the director of the SSS were also to assist the court in unraveling the individuals that answer James Onanefe Ibori throughout the length and breadth of the country and which of them was convicted of the compound charge of negligent conduct and criminal breach of trust in 1995.
On the part of James Onanefe Ibori, he was expected to mount the witness box to confront Justice Yusuf over his claim that he is an ex-convict.
Of all the people subpoenaed by the prosecution, only one witness was allowed by the defence to enter the witness box to give evidence in the case.
Justice Yusuf, the only witness of the prosecution testified that without mincing words, it was Governor James Onanefe Ibori he convicted on September 28, 1995 at Upper Area Court Bwari in charge number CR\81\95.
He said he saw the James Onanefe Ibori he convicted in 2003 (8 years after the conviction) and could still recognise him well.
He claimed that he (Ibori) only looked a little bit older than he was in 1995 and that he was able to recognise him because of the pressure that mounted on him when his case came to his court nine years ago.
He revealed to the court that when rumour was making the rounds to the effect that the serving governor of Delta State was an ex-convict, he said Governor Ibori located him through an Abuja-based lawyer, Mr James Bala Ngilari for assistance.
Ngilari himself was said to be briefed by one Maj-Gen Sabo to fish him out and work on him on how they could stem the ex-convict crisis.
He further narrated that a meeting was arranged on January 21, 2003 at the Delta State Governor’s lodge at Asokoro in Abuja between him and the serving Governor, Chief James Onanefe Ibori where an offer to make him a stinking millionaire was made to him by the governor if only he could elect to save him from the unfolding embarrassment in the matter.
He said though the incumbent Delta State Attorney-General, Prof Amos Utuama and Bala Ngilari were present at the meeting, yet, at the time the promise to make him rich was made, the duo of Utuama and Ngilari had excused them at the request of the governor.
He said that he gave a piece of advice to the governor while in his lodge, to file a suit at the same Upper Area Court for the purpose of resolving the identity problem.
Yusuf claimed that events took a new turn when an allegation was leveled against him that it was he and his support staff that colluded with the governor’s adversary to tamper with the court’s record to implicate Governor Ibori.
He said that when he was asked to respond to the allegation of tampering with the court’s record, he claimed that he called for his record of proceedings and discovered that some pages of the record had been torn off while serial numbers of two of the six First Information Reports he treated that day had been tampered with.
He specifically said that the serial number of a case in which one James Onanefe Ibori was convicted had been tampered with.
It was also claimed that those who tampered with the records of proceedings had also penetrated the Registry to remove the duplicate of the receipts with which convicts, including the James Onanefe Ibori, used in paying their fines on September 28, 2003.
He concluded his evidence that if not for the Almighty Allah, he would have been exterminated by now as there were occasions when cars and jeeps chased him in an attempt to knock him down since the crisis started.
In an emotion-laden voice, he had stolen the hearts of millions of Nigerians who watched him on television or read his accounts in the print or listened to him in court explain his plight and his family members over the matter.
Under cross examination, he maintained his position that it was as sure as death that it was Governor James Ibori he convicted in his court in 1995.
But Yusuf later caved in to barrage of questions cascading from the defence camp as he started confusing the serial numbers of the cases he tried on September 28, 2003 for one another.
He was called a liar by the defence on account that all he told the court were nothing but tissues of lie and a barrage of nonsense.
Initially, he was timid. Later he grew wild, eyeballing Senior Advocates of Nigeria (SANs) cross-examining him to launch hot-words in return.
Prof Utuama though confirmed that there was a meeting between Justice Yusuf and the governor where he himself played a key role, yet he said that Nigerians should wait to hear the defence’s story when the prosecution closed its case.
Efforts to drag Governor Ibori to court to face Justice Yusuf was abortive as the subpoena issued on the serving governor was fought to a standstill by the defence on the accounts that it was issued in error by the trial judge.
It was though not the case of the defence that Governor Ibori was not a competent and compellable witness, it was its arguments that for such subpoena to be issued on a serving governor resident outside the jurisdiction of the court which issued it, the permission of the court must first be sought.
The subpoena issued on the serving Chief Judge of the Abuja High Court, Justice Lawal Gummi to give evidence in the matter was also challenged.
The court held that he was a competent and compellable witness but that there was no need for him to come since what was needed from him was a judicial report of an independent investigation into an allegation that some staff of the Abuja judiciary tampered with court records.
He had held that since the report was in possession of the prosecution and since all parties in the suit were not opposed to its being tendered from the bar, he said the prosecution could tender it and it was so admitted in evidence.
Immediately after the document was admitted in evidence, the prosecution shocked everybody, including the defence as it announced that it was closing its case.
Closing its case, lead prosecution counsel, Chief Gani Fawehinmi (SAN) said he had satisfied the requirements of the Supreme Court that ordered retrial in the case to the effect that he had shown to the court the real James Onanefe Ibori that was convicted in 1995 by Justice Awwal Yusuf of the Upper Area Court, Bwari.
According to him, there was no need to call any other witness for the prosecution because it had been established beyond reasonable doubt that Governor Ibori is an ex-convict.
But the defence which spoke through Prof Utuama claimed that it was clear that the prosecution had only one witness, Justice Yusuf and that his evidence was not profound enough to nail Governor Ibori.
He said that the identification trial ordered by the Supreme Court was to clear all doubts, stressing that the prosecution had succeeded in creating more doubts than clearing them.
He said a lot of questions were still hanging, unanswered. He said a lot of them would be revealed when the prosecution opened its case.
As if to support the position of the defence, a number of keen observers at the proceedings felt that the prosecution goofed, closing its case so early.
They were of the view that the prosecution ought to have proved its case beyond the evidence of Justice Yusuf and Justice Gummi's report.
For instance, they said there was nothing wrong in calling each of the witnesses subpoenaed over the matter to prove or over-prove the prosecution's case.
According to one of them, Barrister Nwonye Jeph: “I think Chief Gani goofed when he closed the prosecution’s case. He ought to have invited the Nigeria Population Commission to establish the fact that only one person in Nigeria answered James Onanefe Ibori in 1995 or that of all the people who answered the same name in the country at the time, a particular one among them was so convicted in 1995 before the Upper Area Court, Bwari.
“If they had done that, that would have proved their case better since it would have cleared the issue of coincidence of names or names tallying.
“I even heard that there is an SSS report which indicted some persons. He did not call the director-general of the Service to tender such report to strengthen his case.
“From the final report of the police being circulated now, the governor was confirmed to be the same person that was convicted in 1995 but I learnt that the prosecution was not aware that such report which could strengthen their case exists. That is a costly mistake too.
“I think too that they should have looked for one Barrister Ndukwe who represented the James Onanefe Ibori in 1995 at the Upper Area Court, Bwari to give evidence for them.
“Better still, the complainant in CR\81\95 could have been looked for to give evidence in the matter.
“One is not even sure whether the complainant in CR\81\95 later sued the convicted James Onanefe Ibori as directed by the court to claim back the sum of N110,000, being monetary cost value of bundles of zinc roof that were in the custody of Ibori but carted away by unknown persons.
“As far as I am concerned, Justice Yusuf's evidence can still be controverted because it is difficult to believe that a judge who convicted an accused person can still see that person eight years after and recognise him.
“Let us assume that it is possible given the circumstances that surrounded the case with serial number CR\81\95 including pressures from top police officers not to register the case file in the criminal complaint book, but it is still curious for a judicial officer of his standing to abandon his chambers for the purpose of meeting somebody he claimed he convicted nine years ago.
“One is forced to ask: what has an honourable judge got to do with a supposed felon? Why is the honourable judge advising a supposed felon to file a suit? Is the suit meant to escape justice or what?
“I don’t think Justice Yusuf is saying all the truth in this matter because even if he was sure that it was Governor Ibori he convicted in 1995, is it not strange for him to have advised Ngilari and the governor to file an identification suit, volunteering to testify for the governor.
“If he was so sure of the person he convicted in 1995, does his acceptance to testify for the supposed felon not amount to compromise? Won’t it be reasonable to say that his story is that of a drowning man fighting back when his action backfired in order to save his job and his freedom?
“And if it is established that the judge knew the person he convicted and only wanted to pervert justice, that means he is not worthy to stay a day longer on the bench and by implication, Governor Ibori himself do have a lot of questions to answer.
“Of course, his meeting with the judge is an indication that something near the allegation that he is an ex-convict is true.
“The names - “James Onanefe Ibori of Delta state” - that appeared boldly and repeatedly on the record of proceedings of September 28, 1995, written in long hand do not help the matter because the court record not only mentioned a similar name answered by the governor of Delta State, it also stated the convict’s state of origin as Delta State.
“His conduct since the matter started, asking to be joined in a suit where he was not named as a defendant is also suspect
“But even if one has a good case, one has to consider the fact that the court will not do your case for you. The court will take a position based on what is before it so that even if the party with a good case does not present all the facts at its disposal to the court, the court will not go outside what is in its record because our courts are not Father Christmas,” he added.
But Chief Gani was of the opinion that the likes of Nwoye did not know as much as the prosecution team knows in the matter.
According to the indefatigable lawyer, his witnesses were key ones, including the judge that convicted the James Onanefe Ibori in 1995 and a chief judge that investigated an allegation by Governor Ibori Onanefe Ibori that somebody super-imposed his name on a charge sheet with serial number CR\81\95.
Both key witnesses, Chief Gani said, had nailed Governor Ibori with both oral and documentary evidences to the effect that he was the same person convicted in 1995 before the Upper Area Court, Bwari.
According to him, no other evidence is primary to the case as the ones he had succeeded in establishing before the court.
Granted that Nwoye had raised some valid points, yet it is still difficult to take a definite position on whether the prosecution had proved its case beyond reasonable doubt until the case of defence is known.
The superior view is that there is no way anybody, particularly Justice Hussein Murkhtar of the Abuja High Court, presiding over the identification trial can decide the falsity or veracity of the gamut of evidence already in his record until both sides are heard out.
