Ibori: Court Admits Chief Judge's Report
As Delta gov opens defence Tuesday
From Lillian Okenwa in Abuja
The Abuja High Court hearing the alleged criminal charges preferred against Governor James Ibori of Delta State yesterday admitted in evidence the report written by the Chief Judge of the Federal Capital Territory (FCT), Justice Lawal Gumi, on the conviction saga involving the governor.
Justice Gumi had on the directive of the Chief Justice of Nigeria (CJN) early last year investigated whether one James Onanefe Ibori was convicted by a Bwari Upper Area Court following a petition the Delta State Governor sent to President Olusegun Obasanjo.
Ruling on the admissibility or other wise of Gumi's report yesterday, the trial judge, Mr. Justice Husseini Muktar, held that contrary to Ibori's position, the Chief Judge was a competent and compellable witness in the matter since he enjoys no immunity from legal process.
Muktar stated that no law allows a court or anybody to choose a plaintiff's witness but that since Gumi's involvement was because of the report he wrote, the report could be tendered from the bar, especially since the defence was in agreement.
After the ruling, council to the plaintiffs, Chief Gani Fawehinmi SAN formally tendered the CJ's report from the bar. Thereafter he announced the formal closing of his evidnce in the matter.
The court adjourned to Tuesday, July 27 and Wednesday 28, for Ibori to open his defence.
The Chief Judge's report stated in part that, "From all available evidence, it is clear that the Upper Area Court Bwari tried and convicted James Onanefe Ibori for negligent conduct and criminal breach of trust on 28/9/95.
"Such evidence also points to the fact that the present Governor of Delta state was the same James Onanefe Ibori that was so tried and convicted on 28/9/95 for the offences stated."
At the last sitting on Monday, Ibori's lead counsel, Chief Milton Paul Ohwovoriole, SAN, told the court that the Chief Judge could not be compelled to testify before the court because the plaintiffs (Messrs Goodnews Agbi and Anthony Alabi), have not shown the court that what the Chief Judge has to say would be beneficial to the case.
He further stated that Justice Gumi is not a competent and compellable witness and that the report should be tendered from the bar instead.
Ohwovoriole said that Justice Gumi should be shielded from frivolous subpoenas like the one Fawehinmi issued since he (the Chief Judge) has nothing to say other than to present the report he wrote.
He said the subpoena issued on Justice Gumi "is bereft of all substance, has no legs on which to stand, and should not be encouraged so as to preserve the integrity and time honoured respect of the judiciary."
Ohwovoriole added, "Our courts should not be turned to a drama theatre where dignitaries would be summoned for publicity stunts.
"It is not necessary to summon the Chief Judge since the document is pleaded and we are not opposed to its admission. What remains to be considered at the appropriate stage is the weight to be attached to the report."
Again, he held that instead of inviting Gumi, the Chief Registrar of the court who is the administrative head should be invited to produce the said documents.
He said Section 229 of the Evidence Act provides that certain requirements be met before a subpoena could be issued, adding that these requirements have not been met by the plaintiffs and that there was no proof of any testimony attached to the subpoenas served on the persons summoned.
He also pointed out that there is nothing to show that the leave of the court was obtained before the subpoena was issued and that the plaintiffs have failed to satisfy all the provisions.
In his response Fawehinmi submitted: "it is wrong and strange if not ridiculous or sublime for the defendants to raise objection against the calling (as witness) of the Chief Judge or to subpoena the Chief Judge to testify on behalf of the plaintiffs as no party has a right to conduct the case of his opponent."
He averred that the report of the Chief Judge is relevant to the issue now before the High Court, with respect to the identity of the James Onanefe Ibori who was convicted by the Upper Area Court, Bwari in CR/81/95 on September 28, 1995 as directed by the Supreme Court on February 6, 2004.
"The directive of the Supreme Court is that the identity of this James Ibori be unravelled so nobody can say that the evidence the Chief Judge is coming to give is frivolous, a publicity stunt or playing to the gallery," he said.
Fawehinmi maintained that under the 1999 Constitution the Chief Judge enjoys no immunity from civil process and can be subpoenaed to testify in a court of law.
"This court cannot pick and choose for the plaintiffs who to call as witness as that approach can undermine the plaintiffs' right to fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria.
'The defendant cannot determine for the plaintiffs the witnesses or witnesses they should call. As a matter of law, the plaintiffs can call any of the defendants as their witness.
"The law, either the Evidence Act, the High Court of the Federal Capital Territory (Civil Procedure) Rules does not prescribe that the leave of the High Court should be sought and obtained before calling the Chief Judge or any other witness in the Federal Capital Territory as the Chief Judge works and lives in the Federal Capital Territory, Abuja.
"As a matter of fact, his office is located up the stairs where the proceeding is taking place", he said.
Countering Ibori's argument that Gumi is not a competent and compellable witness to give evidence, Fawehinmi stated.
"The FCT Chief Judge is a competent and compellable witness capable of being subpoenaed by the Court at the instance of the plaintiffs and to produce and tender the report he made after an investigation he conducted into the Ibori matter.
"To deny the plaintiffs the opportunity of calling the Chief Judge as a witness is to violate and/or infract their fundamental rights to fair hearing guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999."
Governor Ibori had in January 2003 written President Obasanjo with regards to matters relating to the conviction of one James Onanefe Ibori.
The President sent the petition to the CJN who is the Chairman National Judicial Council (NJC).
The Council has the duty to advise the President and governors on any matter pertaining to the judiciary.
The CJN in turn sent a copy of the petition to the Chief Judge of the FCT to investigate the matter and in February 2003, Justice Gumi submitted the report to the CJN.
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