By Austin Ogwuda
ASABA â€” A FEDERAL High Court sitting in Asaba, Delta state, yesterday, adjourned till November 6, for ruling on whether or not to quash the 170-count charge of money laundering brought by the Economic and Financial Crimes Commission, EFCC, against Chief James Ibori, former Governor of Delta state.
Trial judge in the matter, Justice Marcel Awokulehin, adjourned for ruling, after argument by counsel representing parties in the case adopted their written addresses.
Iboriâ€™s lead counsel, Mr. Joseph Daudu (SAN), had argued â€œwe have an application for accelerated hearing of our motion to quash the charges. Our motion is already before you, the prosecutionâ€™s (EFCC) reply is in and we have even filed our reply on point of law to the respondentâ€™s written address. So all our argument concerning the motion is before the court and it will just take two or three minutes for me to make a few points to put matters in order.
We believe we can adopt our written addresses today (yesterday) since we are all already in courtâ€.
Mr. Ibrahim Isiyaku (SAN), EFCCâ€™s lead counsel cited section 19 (1) 2 (B) of the EFCC Act of 2004, which recommends accelerated hearing for EFCC cases. He said his team had been served with the motion for accelerated hearing filed by Iboriâ€™s counsel, adding â€œwe are ready to proceed with the caseâ€.
While adopting his written address, Daudu (SAN), contended that â€œthe motion to quash the case is brought pursuant to the inherent powers of this court. As it appears on the face of it, it is for the quashing of all the 170 counts and to terminate all criminal proceedings against the accused personsâ€.
Adducing reasons why the case should be quashed, he argued that â€œno 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 criminalityâ€.
He further argued that the defence filed a written address on August 4, 2009, to which the EFCC filed a reply on August 17, 2009 and his team filed a reply on points of law dated October 6, 2009, and â€œwe humbly adopt both the written addresses and the reply on the points of lawâ€.
On point of law, he argued that â€œthis 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 launderingâ€, adding that â€œa 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 narcotics, illegal act or any other crime.
The illegal act also presupposes that it must also be a criminal act.â€
He contended that all through the proof of evidence, there is no evidence of any illegal act, criminal act, looting of state treasury and no predicate offence and that for money laundering trial to take place, there must be proof of evidence of illegal enrichment or criminal act.
He contended that the EFCC in its written address, referred to pieces of evidence of â€œunconventional payments tagged security voteâ€ and payments from â€œcontingency fundsâ€, contending that â€œthe fact that a payment is unconventional does not make it criminalâ€.
He argued that the evidence referred to by the EFCC showed that the so-called unconventional payments were actually backed by vouchers, further arguing that â€œwhen 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 lawâ€.
Citing Section 36 (12) of the 1999 Constitution, he argued that â€œthis 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 metâ€.
He urged the court to quash all the 170-count charge without exception and â€œdischarge all the accused persons and ask them to goâ€.
Isiyaku, opposed the application, contending that though the Money Laundering Act of 2003/2004 is linked to proceeds from illicit drugs and criminal act but the â€œeiusdem generisâ€ rule is not applicable to section 14 (1) of the Money Laundering ( Prohibition) Act.
He argued that 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, citing the case of Buhari vs Yusuf 2003, Action Congress vs INEC, 2007, the Supreme Court decision in SHELL Petroleum Development Company vs Federal Board of Inland Revenue, 1996, to support his argument.