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Court begins trial of Dariye in absentia
- Counsel wants case transferred to Abuja
From Saxone Akhaine (Kaduna) and Clifford Ndujihe (Lagos)
PLATEAU State Governor Joshua Dariye was absent at the Kaduna High Court where hearing in the alleged money laundering suit filed against him by the Economic and Financial Crimes Commission (EFCC) was to commence yesterday.
But, the governor's counsel, Prof. Ben. Nwabueze (SAN) has requested that the case be moved to Abuja.
His absence notwithstanding, the trial began with the prosecution witness giving evidence on how huge sums of money were allegedly laundered in foreign accounts.
Besides, among the six former officials of the All States Trust Bank Plc, namely Aina Odessa, Dorthy Uko, Duate Iyabi, Lawson Omokhodion, Aidunye Roberts and Osinmemi Samuel who were in prison custody in Kaduna, only Omokhodion was granted an overnight bail while Uko is still lying critically ill in an Abuja hospital.
The prosecution counsel, Mr. Chile Okoroma who opened the case yesterday by presenting the first prosecution witness, a Chief Superintendent of Police and Head of Operations of EFCC, Mr. Ibrahim Lamurde, led the latter on evidence tendered before the court.
Lamurde told the court that on September 27, 2004, a letter from the director of public prosecution of the federation directed the chairman of EFCC to investigate alleged illegal financial deals by Governor Dariye.
He read the letter to the hearing of the court and it was admitted as exhibit by the High Court Judge, Justice Abdullahi Liman.
The letter reads: "The attention of the Attorney General of the Federation and Minister of Justice has been drawn to Dariye's involvement in money laundry. He was found in possession of 23,000 pounds and several other sums of foreign currencies.
"The London Metropolitan Police also detected that he has more than one million pounds in one of the accounts. In addition, he also has a huge well furnished mansion worth more than 600,000 pounds sterling."
The prosecution witness pointed out that the EFCC was directed to institute an investigation and to know the sources of the money found in possession of the governor and his accounts.
Lamurde alleged that in the light of the startling revelations, "we found that the wife of the governor also fronted for him."
But, the defence lawyers comprising Chief Bayo Ojo (SAN), Dr. Alex Izinyon (SAN), and Mr. Denis Dodo (SAN) declined to cross examine the prosecution witness until the arguments on the immunity clause in favour of Dariye is resolved.
Ojo who addressed the court on the immunity clause, also pointed to the constitutional immunity conferred on a serving president, vice-president, governor and deputy governor in Nigeria against civil, criminal proceedings in his personal capacity and from arrest or imprisonment.
He stressed that section 308 of the 1999 Constitution provides that "notwithstanding anything to the contrary in this constitution, but subject to sub-section 2 of this section, no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office."
He argued that "a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of this process of any court or otherwise, and no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued."
Ojo submitted: "These constitutional provisions are clear and unambiguous. The provisions absolutely render the holders of the offices, of President, Vice President, Governor and Deputy Governor immuned against any civil or criminal proceedings or processes aimed at them in their private or personal capacity."
The defence counsel cited a case involving Samuel Igbe vs His Excellency, Prof. Ambrose Alli, Governor of Bendel State (1981) NCLR, saying "when proceedings are seen to have been taken against an incumbent governor in his personal capacity in respect of private matter, then the suit cannot be maintained against him."
But before Justice Liman adjourned ruling on the immunity clause, and as to whether the court will grant bail to the bank chiefs in prison custody, he shed light on why Dariye did not appear in court yesterday.
Justice Liman said: "I have a document before me, such that the summons I addressed to the governor has been returned to the court. And the explanation was that since the commissioner of police, Plateau State, was not around to effect the order, the deputy commissioner of police asked for the return of the summon to the court."
Meanwhile, a mild drama occurred on the court premises. As the judge rose for adjournment, the former executive director of All States Trust Bank Plc and now the Managing Director of Liberty Bank Plc, Omokhodion who had been granted overnight bail slumped.
It took the intervention of some of the senior officials of the bank who came to witness court proceedings to revive him.
But, Nwabueze, in a letter to the Chief Judge of the Federal High Court, Lagos yesterday, said that the transfer was necessary because there was no reason to hear it in Kaduna and that all those involved in the matter reside in Abuja.
The constitutional lawyer also raised the issue of which court had the jurisdiction to entertain the suit, which he once again stated that the Federal Government was not competent to institute.
According to him, the allegation was one raising a dispute between the Federation and Plateau State and as such falls within the purview of the Supreme Court.
Titled: Re-Federal Republic Of Nigeria Vs Chief Joshua Dariye & Seven Others, He said: "I wish to apply that you, as Chief Judge, kindly transfer the suit to a Federal High Court, Abuja, on the grounds of forum conveniens. The seven defendants charged with... Governor Dariye, all reside in Abuja, and the Economic and Financial Crimes Commission (EFCC), the complainant, has its headquarters in Abuja. There is no good reason known to me for filing the suit in the first place in Kaduna, instead of in Abuja. The interest of justice clearly requires that the suit be transferred to Abuja."
Challenging the jurisdiction of the Federal High Court over the suit, Nwabueze argued that the case was an alleged official corruption involving the actions of Dariye in administration and disbursement of the funds of Plateau State in his official capacity as governor of the state.
"In his private capacity as Chief Dariye, he has no power over or access to the funds of the state. Any allegation by the Federal Government that Chief Dariye, as Governor of Plateau State, has misappropriated or diverted any part of the money of the State Government, raises a dispute between the Federation and Plateau State, and only the Supreme Court under section 232 of the 1999 Constitution has jurisdiction over the dispute to the exclusion of any other court," he said.
Altogether, Nwabueze insisted that the Federal Government was not competent to institute the suit against Dariye because "the constitution provides in section 176 (2) that 'the Governor of a state shall be the Chief Executive of that state,' and vests in him the executive powers of the state, just as it vests the executive powers of the federation in the President."
Said he: "The executive powers of a state as so vested in the Governor, including as its most cardinal aspect, the administration and management of the funds of the state, are nowhere made subject to the executive powers of the Federation by any provisions of the constitution. It would be a monstrous desecration of the federal principle enshrined in our constitution and which underlies our entire governmental system, for the Federal Government to arrogate to itself power over the administration and management of the funds of a State Government."
Nwabueze said the issues of competence of the Federal Government to institute the case and jurisdiction of the Federal High over it were so fundamental and of national importance as to require that the suit be referred to the Court of Appeal under section 295 of the constitution.
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