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On April 14, 2010,
Justice Ibrahim Buba of the Federal High Court Asaba issued an interim
injunction restraining the Economic and Financial Crimes Commission
(EFCC) “from arresting, harassing, intimidating, or attempting to
arrest, harass, and/or intimidate (James Ibori) in any manner
whatsoever and howsoever” pending the hearing of the substantive suit
next Tuesday, 20th April 2010.

This judicial
intervention followed an ex parte motion filed by Mr. Ibori’s lawyers
less than 24 hours after the EFCC declared him wanted over fresh
allegations of corruption and money laundering to the tune of N44
billion in relation to his tenure as Delta State governor.

Since an ex parte
motion is heard by a judge without notifying the affected respondent,
Justice Buba ordered that notice of Ibori’s motion be served on all the
respondents in the case, including the Attorney-General of the
Federation (AGF), the EFCC, the Inspector General of Police and the
Director of the State Security Service before the substantive hearing
on Tuesday.

Although there is
absolutely no provision of Nigerian law that allows Justice Buba to
convert this interim injunction to a perpetual injunction purporting to
restrain the EFCC and the other respondents permanently from taking any
action against Ibori, the selfsame Justice Buba had on March 5, 2008
issued a perpetual injunction restraining the EFCC from carrying out
its statutory functions in relation to the alleged looting of the
Rivers State treasury by Peter Odili.

Just like in
Ibori’s case, he initially granted an interim injunction restraining
the Commission from taking any action against Odili in a suit brought
by the Attorney General of Rivers State. When Odili sought to enforce
the order by way of an ex parte motion, he ordered that all parties be
served notice of the motion. At the hearing of this motion, he rejected
the EFCC’s objection and granted Odili the perpetual injunction he
asked for.

The National
Judicial Council recently dismissed my petition against Justice Buba
for gross incompetence and flagrant abuse of power amounting to
judicial misconduct and breaches of the Code of Conduct for Judicial
Conduct on the issue. The Council branded the petition “unmeritorious”
but failed to provide any explanation whatsoever for supporting an
unprecedented injunction that effectively places Odili above the law.
The Council exonerated Justice Buba at its meeting on 24th and 25th
February 2010, in time for his recent transfer to Asaba with effect
from 1st April 2010.

Against this
background, it is significant that of all the 31 Divisions of the
Federal High Court Justice Buba was transferred to Asaba and he (the
newest judge) was the one to which this matter was allocated.

Mr. Ibori is notorious for being a beneficiary of bizarre decisions from all levels of the Nigerian Judiciary.

The decisions of
the Election Petition Tribunal and the Supreme Court in 2003 that the
James Onanefe Ibori who was convicted for stealing building materials
from the construction site of the Lower Usman Dam by a Bwari Magistrate
Court Abuja on September 28, 1995 is not this James Onanefe Ibori
easily come to mind.

The fact that the
relevant Magistrate, Alhaji Awal Yusuf, positively identified this
Ibori as the Ibori he convicted in 1995 and testified that this Ibori
begged him at a meeting on January 23, 2003 to “assist me and I would
pay you back in cash of 10 million naira in any denomination” was
apparently of no consequence to the great judicial minds that dealt
with the matter.

It is also worthy
of note that Justice Marcel Awokulehin of the Federal High Court Asaba
last December dismissed a 170-count indictment brought against Ibori by
the EFCC, purportedly for lack of evidence.

The war of words
currently raging between the EFCC’s spokesman Femi Babafemi and Ibori’s
team typifies the incompetence with which the Commission has handled
this and other matters since Farida Waziri took over as chairperson.

It is notable that
after the Commission found itself in the curious position where its
case against Ibori was dismissed for lack of evidence, Mr. Babafemi
condemned the decision, claiming that the Commission had overwhelming
evidence against Ibori. But rather than put this evidence before a
different judge immediately (since Ibori was merely discharged and not
acquitted), the Commission embarked on the long and tortuous and
completely unnecessary process of an appeal to the Court of Appeal,
which will no doubt be followed by a further appeal to the Supreme
Court.

It was also under
Mrs. Waziri’s watch that the EFCC failed to appeal the illegal
perpetual injunction granted to Odili by Justice Buba in 2008 or take
any other action whatsoever on the matter.

The AGF
superintends the EFCC and is required by the Constitution to “have
regard to the public interest, the interest of justice, and the need to
prevent any abuse of legal process” in carrying out his functions. Yet,
Michael Aondoakaa, who was a respondent in the matter, did not object
to Odili’s application for a perpetual injunction; did not appeal the
decision; and did not direct the EFCC to do so.

How the current
case is handled will go a long way in determining whether the new
attorney general, Mohammed Bello Adoke, who is indeed the first
respondent in the case, is a breath of fresh air or more of the same.

Osita Mba belongs to the Anti-Corruption Committee and the Public
and Professional Interest Division of the International Bar Association.