By Chukwudi Enebeli
The news of the eventual repatriation of part of the public funds looted by former Governor of Delta State, Chief James Ibori, while serving as the Governor of Delta State, received overwhelming acceptance and celebration among the Nigerian populace. However, the issue of who is entitled to the repatriated funds has generated heated arguments in several quarters of the polity.
Background
Chief James Ibori was elected as Governor of Delta State in the 1999 general elections, and served as Governor for eight years having been re-elected to serve his second term in office in 2003.
Towards the conclusion of his tenure, the Economic and Financial Crimes Commission (EFCC) commenced an investigation into the allegations of embezzlement and siphoning of Delta State funds by James Ibori, after receiving a petition from the Delta State Elders and Stakeholders Forum on behalf of the people of Delta State. The attempt to prosecute Chief James Ibori within Nigeria was unsuccessful, as the charges were quashed.
However, on the 17th of April, 2012, Ibori was sentenced by the Southwark Crown Court to 13 years imprisonment, and his assets and properties were confiscated.
On the 9th of March 2021, the United Kingdom signed a Memorandum of Understanding (MoU) with the Federal Government of Nigeria, to return the sum of £4.2 million (“repatriated funds”) being part of the recovered funds to Nigeria.
Who is Entitled to the Funds?
The news of the restitution of the £4.2 million has generated mixed feelings among commentators on who is entitled to receive the funds, as between the Federal Government and the Delta State Government.
Two schools of thought have emerged on this topical issue. On the one hand, are people who believe the funds should be returned to the Federal Government. Proponents of this school of thought believe that the victim of the loot was the Federal Government, because the law breached by the looting is a Federal Law (the Money Laundering Act), and the Federal Government is the party that has been fully involved in the processes that culminated in the conviction of James Ibori, confiscation of his properties. and the proposed repatriation of the £4.2 million.
Some proponents also argued that, the Delta State Government had claimed in the past that they had no complaint against James Ibori, and they do not support the prosecution of the ex-Governor.
As expected, the Federal Government aligns itself to the first school of thought, and has already proposed that the £4.2 million will be used in the construction of the second Niger Bridge, Abuja-Kano road, and Lagos-Ibadan Express road.
On the other hand, however, are the people who believe that the funds should be returned to the Delta State Government. I agree with this school of thought, for the reasons which I shall now canvass in succeeding paragraphs anon.
Analysis
The starting point in analysing this issue, would be to identify the owner of the monies stolen and siphoned by the ex-Governor. Indeed, it is the owner of the stolen monies that is the victim of the theft, and is entitled to the repatriated funds. See: David v Federal Republic of Nigeria (2018) LPELR-43677(CA).
This point was underscored by Ndukwe-Anyanwu J.C.A. in the case of Emmanuel Nwude v Federal Republic of Nigeria & Ors [2016] 5 NWLR (Pt. 1506) 471 when His Lordship defined “Restitution” as “an act of giving back to a person something that was lost or stolen, or paying him for the loss”.
It is not in doubt that, the monies were stolen and diverted by the ex-Governor while he served as the Governor of Delta State. Put another way, the monies were public funds meant for safeguarding the lives and properties of the people of Delta State, as well as for the development of the State.
By this analogy, it will be safe to conclude that the stolen monies belonged exclusively to the people of Delta State; it is they who were affected by the act of the ex-Governor of Delta State. Furthermore, the Delta State Government being the trustee of the people of Delta State, is entitled to the funds to hold same in trust for the people of Delta State. This point is made more poignant against the backdrop of the fact that, the ex-Governor has never served in any Federal capacity.
Another way to view the issue is to answer the question, had the ex-Governor not embezzled, stolen or siphoned the monies, who would have taken benefit of the monies? Certainly, the monies would have been available to the benefit of the people of Delta State exclusively. It is my view, therefore, that the repatriated funds be paid exclusively to the Delta State Government.
To further drive the point I am making home, if a customer of a Bank obtains a loan from the Bank under false pretence, and a criminal charge is preferred against such a customer and his assets are confiscated and sold after the criminal proceedings, would the money be returned to the Central Bank of Nigeria? Certainly not.
In the same vein, the Federal Government cannot lay claim to the repatriated funds. The funds belong exclusively to the good people of Delta State, and as such, it is unfair, unjust and contrary to all known equitable principles, to deprive the State of what belongs to it. The fact that the State had through one of its officers, held the view that its monies were not missing, is not sufficient basis for the Federal Government to lay claim to the monies in the face of contrary evidence.
The fact that the law breached by the ex-Governor was a Federal Law, and that the Federal Government was the party actively involved in the process of the repatriation, does not, in my view, make the Federal Government the victim of the looting by the ex-Governor of Delta State. The victims for all intents and purpose, are the Delta State Government and its citizens.
Conclusion
While the Federal Government may have outlined projects to which it intends to apply the looted sums, the justice of this case requires that the people of Delta State be afforded exclusive access to the monies by forwarding same to the Delta State Government immediately.
In the event that the Federal Government refuses to yield to justice and fairness, the Delta State Government may have recourse to the Supreme Court, in furtherance of their rights under Section 232 (1) of the Constitution. The earlier the Delta State Government acts, the better, because it has also been reported that the Honourable Attorney- General of the Federation had stated that over £100 million allegedly stolen by the ex-Governor, is still being expected.
As an indigene of Delta State, I hope and pray His Excellency, Dr Ifeanyi Okowa, acting through the office of the Honourable Attorney- General of the State, immediately takes steps towards protecting what rightfully belongs to Deltans.
Chukwudi Enebeli MCIArb, Partner, Pinheiro LP
