By Joseph Onyekwere (Assistant Law & Foreign Affairs Editor) and Lawrence Njoku (South East Bureau Chief)
• Lawyer Sues FG, Prays Court To Stop Deployment Of Fund
• FG’s Action Is Injustice Against Delta People – Nwani
• Constitutionally, Returned Funds Belong To Delta – Nwafor
• Suit Will Expand Nigeria’s Legal Jurisprudence – Ekwe
• Delta Is Not Entitled To Money, Suit Against FG, Idle, Farcical, Cynical – Candide-Johnson
Divergent views have continued to trail the Federal Government’s desire to appropriate the £4.2m recovered from Britain that former Governor James Onanefe Ibori and his associates looted. Indeed, groups and individuals are rising in support of repatriating the money to Delta State.
Already, a human rights activist and lawyer, Chief Malcom Omirhobo has sued the Federal Government at a Federal High Court, Abuja, where he prayed the court to declare that by provisions of the Nigerian Constitution, the people and government of Delta State were entitled to the £4.2m (about N2.2b) recovered by the British government from the former jail bird and his associates.
While Lagos-based lawyer, Okoroani Nwani, who described Omirhobo case as a welcomed development, because “the action of the Federal Government and National Executive Council represents an injustice against the people of Delta State and Nigerian public in Delta State,” his Abuja-based colleague, Joseph Ekwe, insists that the suit will expand the country’s legal jurisprudence.
But a former dean, Faculty of Law, Enugu State University of Science and Technology (ESUT), Prof. Agu Gab Agu, begged to differ, pointing out that even though Ibori was Delta State governor, it had not been established that the money was removed from the state’s treasury hence resorting to court over custody of the said looted funds was unnecessary. His view is shared by a Lagos-based advocate and member of the Justice Reform Project, Charles Candide-Johnson (SAN) corroborates Agu, noting that Omirhobo’s suit against the Federal Government is an idle threat, and the outcries about the money “farcical and cynical.”
Other respondents in Omirhobo’s suit are the Federal Executive Council (FEC); the Attorney General of the Federation (AGF); the Accountant General of the Federation; the Minister of Finance; the Central Bank of Nigeria (CBN), the Delta State government, the Attorney General of Delta State, and the Accountant General of the state.
The applicant is asking the court to declare that the nation’s constitution is the supreme law and its provisions have a binding force on all the respondents, and all persons and authorities throughout the country.
According to him, Nigeria is a federation with 36 federating states, 768 local councils, and a capital territory, which constitutes the three tiers of government, with their respective constitutional responsibilities to execute for the economic development and wellbeing of people within their domain..
Omirhobo wants the court to hold that Delta State as one of the federating units with 25 local councils is entitled to revenue allocation from the Federation Account to enable it discharge her constitutional responsibilities to the people.
He also prayed the court to declare that the seized funds belong to the people of Delta State, and constitute revenue that can be received by the Nigerian Federation and paid into her Consolidated Revenue Fund.
The applicant therefore prayed the court to declare that the signed Memorandum of Understanding (MOU) between Nigeria and the UK government in respect of the £4.2 million recovered by the British government from the ex-governor of Delta State is subordinate to the Nigerian Constitution.
Also contained in the litany of prayers, is “a declaration that the Federal Government cannot receive the said £4.2 million recovered loot from the British government without paying it into the Federation Account.
He also asked for “a declaration of this court that the 1st, 2nd,3rd, 4th, 5th and 6th respondents cannot expend the said recovered loot of £4.2 million belonging to Delta State in the execution of completing the second Niger Bridge, Lagos/Ibadan and Abuja/Kano Expressway projects under the coordination of the Nigerian Investment Authority (NSIA), without appropriation,” as well as another “declaration of this court that it is improper, illegal, unlawful and unconstitutional for the respondents to expropriate, confiscate, commandeer, appropriate, sequestrate and/or convert the £4.2 million recovered loot belonging to the applicant and the people of Delta State to Nigerian wealth for the benefit of other Nigerians, and thereby depriving the 7th respondent (Delta) of her constitutional responsibilities to the people of the state, and also robbing the people of the economic development and well-being.”
He, therefore, asked the court to declare that it is improper, illegal, unlawful and unconstitutional for the 1st, 2nd, 3rd, 4th, 5th and 6th respondents to expend the recovered loot for projects other than those that are beneficial for the economic development and wellbeing of the people of Delta State.
In addition, the applicant wants the court to say that the Federal Government acted unlawfully by failing to return the money to Delta State as monies recovered from ex-governors of Bayelsa and Plateau states from abroad were returned to the people and governments of Bayelsa and Plateau.
Apart from declaring FG’s decision unlawful, the applicant also wants the court to restrain it from tampering with and/or disbursing, using, utilizing or expending the recovered £4.2 million and an order compelling it to transfer the funds to Delta State to enable her perform her constitutional responsibilities to her people as well as any further order or orders as the court may deem fit to make.
In a 71-paragraph affidavit in support of the originating summon, deposed to by the applicant himself, he averred that he is a Nigerian from Otor-Iwhreko, Ughelli, Ughelli North Local Council of Delta State, and swore that he is a member of the Human Rights Law Committee and the Probono Committee of the International Bar Association, who has filed several public interest suits in defence of the Nigerian Constitution; interest of the poor; the weak; the needy; the illiterate; the uninformed; the invulnerable; the incarcerated, and the unrepresented.
He averred that instead of using the monies accruing to the Delta from Revenue Allocation from the Federation Account and internally generated revenue to develop it and its people, the former governor of the state, Chief Ibori, looted billions of pounds, dollars and naira from the coffers of the state for himself, friends and family members, which he stashed away in foreign countries.
He swore: “That the said ex-governor was arrested by the Metropolitan Police of Britain and charged to court for fraud, forgery and corruption and was eventually convicted in 2012 by a court of law in the United Kingdom for his deeds for 13 years and after serving his term, he was released.
“That it is in the public domain and replete in the media that the British Government on March 9, 2021 renounced anything to do with money obtained through criminality or corruption and resolved to return £4.2 million recovered from friends and family members of the said former governor in a couple of days to the 1st respondent.
“That the 3rd respondent disclosed that the 2nd respondent has directed that the £4.2 million to be returned and the loot be deployed to complete the second Niger Bridge, Lagos/Ibadan and Abuja/Kano Expressway Projects under the coordination of the Nigerian Investment Authority (NSIA).
NWANI while siding with Chief Omirhobo, the people of Delta State and the Nigerian public in Delta State said: “The Federal Government does not have the right to convert Delta State’s money to its own use. The action of the Federal Government is also discriminatory in the sense that the Federal Government once recovered monies looted by the ex-governor of Bayelsa State, from the Bayelsa people and returned it to the Bayelsa State government. So, why must the Delta State case be different?” He asked.
Another lawyer, Inno Nwafor said: “There is no doubt that the fund in question was looted from the treasury of the Delta State government and recovered by the UK government. The Federal Government is laying claim to the fund. But I think that in view of the status of Delta State as a federating unit of Nigeria, the state has the constitutional right to be entitled to the fund.”
Nwafor, who said that the money should not be given to the Federal Government, cited Section 120 (1) of the 1999 Constitution, which talks about Consolidated Revenue Funds as the basis for his position.
ACCORDING to Ekwe, the Constitution of Nigeria is supreme and therefore the MoU signed by the British and Nigerian governments on how the money would be expended is subordinate to Nigerian constitution.
“Nigeria runs a fiscal federalism where monies allocated to each state government is to be used to uplift and improve lives of the people of the states by their governments that are constitutionally bound to provide amenities for their people,” said he.
“To allow the Federal Government to seize the money will amount to unlawful obstruction of Delta State government from discharging her constitutional responsibilities to her people, and the deprivation of the people’s improvement in their standard of living.”
Another lawyer, Samuel Momoh, who commended Omirhobo for his dogged and resilient fight for justice using the apparatus of law, declared that the government has no claims whatsoever over the money, notwithstanding the fact that its agencies were to a large extent, instrumental in the recovery of the said loot.
“My position is backed up by Article 35 of the United Nations Convention that is ratified between the United Kingdom and Nigeria respectively, which allows proceeds recovered from corruption to be expended on the victims. It remains indubitable that the victim in this issue is Delta State whose money was siphoned.
“I therefore submit, with greatest respect that the Federal Government having allocated to Delta State, its part of the monthly allocation, has become functus officio (of no further official authority, or legal effect) over the said resources,” he insisted.
But Candide-Johnson, a Senior Advocate of Nigeria (SAN), who sees Omirhobo’s suit farcical and cynical, argued that the funds were looted and confiscated by the UK government, pursuant to its own fraud and money laundering laws, for which the UK, out of its own magnanimity decided to return to Nigeria.
“The case was abandoned in London without participation by either Delta State, or the Nigerian Government. The process of confiscation of this fund was from UK law and United Nations Convention Against Corruption (UNCAC), which encourages states to negotiate between themselves to return confiscated funds to those who have been victimised.
“And MOU has been signed with the British government in accordance with international law because the UK government, just like many others, and the Swiss government in respect of the Abacha loot do not have confidence in respect of how the money would be utilised if sent like that. If the money goes back to Delta State, which said no money was missing, it will likely be stolen again,” he stated.
He further argued that the MoU is binding at the sovereign level, pointing out that Delta State government is not a sovereign nation, and did not make any complaint about its money being stolen.
“So, crying wolf at this late stage is just politics, idle and silly as far as I’m concerned. The fund is not appropriated. It is proceeds of crime forfeited to the UK government and paid under an MoU. The UK will not release it to Delta State. They are just making a noise,” he declared.
AGU who opined that it was improper to return the money to Delta State since it has not been established that it came from its treasury, added: “I do not share in the submission that it is a matter for the court. Let’s look at it this way. Who pursued the money and what agreement did they enter? If the Federal government had entered into an agreement with the British government on how the money will be shared, would anybody have stopped them? It is just equity. Who trailed the money, and who even knew where it came out from? Remember these are property linked to Ibori, and they were sold because they were suspected to be proceeds of crime. How do you know where it came from, or is it because Ibori is from Delta State? Even if you begin to look at that logic, you will agree that most of the money came from the federal pool. They didn’t say it was Ibori’s money. The point is that the Federal Government should be advised that when such things happen, it should give a larger chunk of the money to the state, where it is assumed to have been taken away from. If Ibori had been tried and he said it is from the treasury of Delta State, you can now say you want to replace it.
A Civil Rights Lawyer, Olu Omotayo, in his submission said: “The Delta State government is the representative of the state, and for the benefit of Delta people. It is supposed to take up the challenge and institute an action against the Federal Government for the return of the money due to their state.
“The money is what Ibori looted while he was in government and the UK government said that it came in because the money was unaccounted for. He embezzled the money and Ibori did not act in any other capacity than the governor of Delta State at that point in question. So if the UK government had suspected that the money was looted from the public treasury, it is the treasury of the Delta State government, and not that of the Federal Government. He did not hold any federal office,” he said.