Abuja, Asaba — Money Laundering Former Delta State Governor James Ibori's worst fears may have been over. Yesterday, a Federal High Court sitting in Asaba, the state capital, quashed the 170-count charge preferred against him by the Economic and Financial Crimes Commission (EFCC) for alleged money laundering.

But the EFCC has said the decision of the court will not stand. Justice Marcel Awokulehin of the court struck out the case and discharged and acquitted Ibori for lack of evidence. The verdict emerged like an anti-climax of sort in the trial, which had begun before a Federal High Court in Kaduna in December 2007, where the then Mallam Nuhu Ribadu-led EFCC arraigned the ex-governor. Ibori had failed to secure his bail at that time and subsequently spent the 2007 Christmas and New Year (2008) festivities in detention.

In his judgment that lasted two hours, Justice Awokulehin said: "Prosecution failed to show critical collaborative evidence. Thus, I accordingly hold that the prosecution has failed to make a prima facie case in any or all of the 170 charges. So I quash and dismiss all the 170-count charge." He held that the EFCC was unable to establish a prima facie case against the accused persons because there were no substantial facts and evidence.

But for the two hours the proceedings lasted, however, majority of journalists who had come to cover the case were prevented from entering the court room as over 100 stern-looking security operatives barricaded the gate leading to the court premises. Visitors granted access to the premises were frisked with metal detectors before being allowed entrance. As early as 7.55am, the entire building housing the court had been taken over by Ibori's political associates and supporters, while officials of the state government were also in strategic and vantage positions in the crowded court room.

Justice Awokulehin had on three occasions deferred ruling in the application brought by Ibori asking the court to quash the charges against him for lack of evidence. The judge had insisted on staying on the side of caution than rush the judgment. Reviewing the case, Justice Awokulehin said the issues on which everything depended were as follows: whether the EFCC made any prima facie case on any or all the charges, whether any of the accused or all the accused persons have been linked with the commission of any crime as charged and whether it is immaterial that Delta State has not complained about any missing money.

According to him, for money laundering charges to hold, underlining criminal charges and predicate offences such as incidence of corruption, abuse of public office, resources got from illegal acts or whether any persons was aided by any person to disguise money from an undeclared origin must be established. Justice Awokulehin held that to merely say that money was paid from a government account into another account is no proof of money laundering. He said: "It is worthy of note that there is no disagreement on the well-defined position of the law.

The divergence is how it applies to this case. The judge then ruled that going by Sections 27 and 28 of the Evidence Act, that an affidavit shall not contain extraneous matters." Justice Awokulehin talked about the "ejusdem generic" as argued by EFCC counsel, that issues of money laundering could be proved from the transfer of money alone.

He said: "My view is all encompassing. Perhaps the drafters of the EFCC Act would have criminalised every transfers of money if they wanted all such transfers to be criminal acts. But they did not, and the rule applies without exception as EFCC Act mentioned any other illegal act - even remotely connected with a crime." Thus, he ruled that the legal authority cited by EFCC on the "ejusdem generic" was "unnecessary and inappropriate". "Though the Money Laundering Act of 2003 and 2004 is linked to the proceeds from illicit drugs and criminal acts but that the 'ejusdem generis' rule is not applicable to Section 14(1) of the Act," he said.

The judge held that an accused must be sufficiently linked to a crime but that this has not been established in the case. On the charge that money was paid into Ibori's personal account at Guaranty Trust Bank from Delta State's account, the judge said EFCC only attached bank statements showing lodgments made but never showed any crime and that nobody was questioned over that, not the Delta State official and not a bank official. He said: "Apart from the statement of account, I've seen no evidence, no statements, and even in the two statements of Ibori, he was not asked to give details about any inappropriate payment into his private account. Nothing was shown pertaining to a crime.

The fact of the origin of the money is important to prima facie evidence of a crime. So I have no hesitation to quash this particular charge." On the charges that money was fraudulently paid into Prof. Amos Utuama's (at present the deputy governor of the state) Prime Chambers' accounts, Justice Awokulehin said: "I have reviewed the statements of accounts. I have read all the witness statements and those from Prime Chambers. All payments made were official and receipted for, and no payment was made to third parties, and no payment came from a criminal act. Prof. Utuama too was by then not under immunity; yet he was not questioned.

Mere payments do not amount to money laundering. However, I feel obliged to say that a transfer of money may become an illegal act but such money must derive from illegal acts first. So I rule that the charges are defective. No iota of evidence in the proof of evidence. On the aspects of the case concerning Ms. Adepimpe Pogoson, the judge said: "Bank statements, deposit slips, company registration and incorporation did not in any way implicate Ibori as having anything to do with the company under focus and the directors of the company were not charged and nobody's witness statement said anything in opposition. "As earlier said in this ruling, the ingredients that some persons must have benefitted, and that those same persons are charged for conspiracy destroys that charge.

There is no evidence too that the first accused (Ibori) benefitted from any contract to any company. I have examined the accused person's bank deposits. There is no contradictory evidence that the second accused was a contractor with Delta State as stated clearly by the accused." On the allegation that Ibori attempted to bribe former EFCC chairman Nuhu Ribadu with $15 million, Justice Awokulehin said: "It is shocking that though the evidence are statements from Nuhu Ribadu and two EFCC operatives - Ibrahim Lamorde and James Garba - to the effect that they collected the alleged money from Andy Uba. Yet, Andy Uba's statement was not collected to show what came from Uba, to show who gave Uba the money and for what purpose. Without Uba's evidence, those of EFCC operatives are worthless evidence.

"On Ibori's relationship with MER Engineering and money laundering charges against him and the company, the judge ruled that "evidence proffered are statements of witnesses and statement of accounts. Documents submitted showed that (Ibori) was a director of the company but resigned his directorship on becoming governor". "Also, there is no evidence of any illegal act. Letter shown to court confirmed that Chevron, Shell, NNPC (Nigerian National Petroleum Corporation), Church Oil and Gas and Ventures paid money into the company's account for a contract performed. No evidence to show illegal payment," he said. On Ms. Udoamaka Okoronkwo, the second accused, into whose account money was alleged to have been illegally paid, the judge said: "The second accused has been shown to be a contractor. It is confirmed that all relevant documents have been shown to EFCC.

There is no correlation between the accounts and dates. The witness statements showed that there was real contract and lodgments deposited. "Second accused thereafter issued cheques to various persons such that the account was depleted from N21 million to N4 million, but nothing was paid out to Ibori. Really, there was no evidence of illegal act or that Ibori even benefitted in any way or money funnelled into his account." Earlier, Ibori's lead counsel, Mr. J.B. Daudu (SAN), had said: "No prima facie case has been established against any of the accused persons and none of the accused persons have been charged even with any act of criminality." Daudu said on points of law that, "This is not a corruption trial or misappropriation of state funds, all the accused persons are charged for money laundering and there is a specific legislation for money laundering". He argued that "a unique characteristic of the Money Laundering Act of 2003 or 2004 is that it envisages a predicate offence and in Section 14 (1) of the Money Laundering Act 2003/2004, the opening sentence there criminalises any person who transfers money gotten from narcotic, illegal act or any other crime. The illegal act also presupposes that it must also be a criminal act". Daudu further stated that throughout the proof of evidence, there is no evidence of any illegal act, criminal act, looting of state treasury and no predicate offence.

That for money laundering trial to take place, there must be proof of evidence of illegal enrichment or criminal act. He said: "For a money laundering trial to proceed, there must be proof of a predicate crime and none exists in this case. And if none exists, then there is no basis to proceed." Continuing, Daudu said EFCC's lead counsel in his written address referred to pieces of evidence of "unconventional payments tagged security vote" and payments from "contingency funds". Calling attention to what he called a "delicate submission", Daudu said: "When a law or act talks about criminal acts that law is always specific. But when a conduct is tagged unconventional as basis for prosecution, such conduct should be linked to a written law." Daudu supported his stand with Section 36 (12) of the 1999 Constitution, saying "this has not been met as an offence is supposed to be defined and has to be defined in a written law.

This constitutional requirement has not been met." He urged the court to quash all the charges against Ibori without exception and to discharge all the accused persons. EFCC's lead counsel, Mr. Ibrahim Isiyaku (SAN), had argued that though the Money Laundering Act of 2003/2004 is linked to proceeds from illicit drugs and criminal act but the "ejusdem generis" rule is not applicable to Section 14 (1) of the Money Laundering (Prohibition) Act. He said the rule can only matter where there are general words following particular and specific words and that the general words should be construed and confined to the specified words.

He quoted three authorities to back his assertion -Buhari vs Yusuf, 2003; Action Congress vs INEC, 2007; and the Supreme Court's decision in Shell Petroleum Development Company vs Federal Board of Inland Revenue, 1996. EFCC Spokesman Femi Babafemi said an appeal would be filed immediately against the judgment. Babafemi said in a release last night: "In view of our determination to prosecute this case to a logical conclusion and our strong belief that this hazy judgment cannot stand based on available evidence, we have to prosecute the case. We have instructed our lawyers to immediately file an appeal against Justice Awokulehin's judgment at a higher court. "We are convinced that this judgment cannot stand especially at this critical time in our nation's history when the judiciary is being hailed for rising to the challenge of delivering fearless judgments against the corrupt in our society." "This kind of judgment if not challenged," he said, "is capable of deepening the menace of corruption in our country rather than contributing in any way to the cause of justice, which is the basis of sustaining our democratic governance.

"This explains why the leadership of the Commission will leave no stone unturned to ensure that the case is taken to a logical conclusion given the enormity of evidence available to prosecution." Meanwhile, Ibori has said he thanked the Almighty God for his victory over EFCC. He is also grateful to the judiciary, which he said, has proved that "it is not only the refuge of the common man, but can also protect the so-called big man when untold forces are arrayed against him, as many Nigerians tend to believe that any politician is as guilty as charged." He said: "I am indeed very pleased that justice has been done, and that justice, that very foundation of our democracy, is there for everyone and not only for the poor."