Azibaola Robert: Arrest, Detention, Trial and Exoneration

He is soft-spoken and convincingly comes across as one who butter would not melt in his mouth, which contrasts the fervency with which he pursues human rights and environmental issues. His natural faculties lie in sciences and engineering and he keeps making strides in them though he is a trained lawyer. His activism made him a common name in the Niger Delta and the International Oil Companies and organisations, with access to the movers and shakers of the creeks, for which he was called to help talk to those he knew to stem oil bunkering and illegal refining. Then, a botched attempt to use his company’s name to arrange for a safe house by security system, without his knowledge, led to looking into his company’s activities; and before you know it, he was nearly destroyed; Ahamefula Ogbu wades through the details of his ordeal.

For Azibaola, the day had started like every other, but something appeared to be wrong; call it foreboding, but life had to go on. Then it happened, like a thunderbolt. He was called and informed that the Economic and Financial Crimes Commission (EFCC) was at his house and that, without prior notice. After laying siege and discovering that, actually, their target was not home, they left a message to report to their office the next day. The heckling and harassment of his wife and family members, with threat to break down doors with the already on-hand sledged-harmers, were as if he had been tried and convicted.

Not waiting for the next day, as soon as he became aware that evening of March 22, 2016, he offered to report to the EFCC office but was told he would waste their time as the day was long gone, an indication that he may be their guest for a while. On the next day, March 23, 2016, he voluntarily reported with his wife, Mrs. Stella Robert. After a gruelling eight-hour waiting, and later interrogation and statement writing, by a team of interrogators, led by one Ibrahim Musa, a police officer, he was taken into custody at EFCC detention facility at Idiagbon House, with Mr. Dakoru Atukpa, a Director of OnePlus Nigeria Limited.

What Azibaola thought was going to be a walk through the park began to take a concrete shape of mirage. His detention stretched and before you know it, he had clocked 28 days in detention from March 23 to April 18, 2016. But as the aphorism goes: “a clear conscience fears no accusation”.

Due to the unending detention, which he had been subjected without charge, his lawyers, led by Chief Chris Uche, SAN, went to court for the enforcement of his fundamental human rights under Chapter four of the Nigerian Constitution, and secured a court order from Honourable Justice Goodhead of the Abuja High Court, for his immediate production and release.

But rather than obey the court order, Azibaola was woken up on the early morning of April 19, 2016, and flown to Lagos by EFCC operatives and further detained till May 26 – a clear 39 days. By this time, his health had significantly deteriorated. He collapsed on May 25th 2016 during interrogation and was rushed to the Military Hospital Ikoyi, where he was resuscitated. Then on the 26th he was again shipped back to Abuja, where he was further detained for additional 12 days. Thereafter, he was interrogated for another two days before he was eventually charged to court. In all, Azibaola spent 80 days in detention without charge.

During his detention ordeal, Azibaola was asked to write all he knew about OnePlus Holdings Nigeria Limited, a company he owned. With relish, he did and officials soon bent over him and shouting out orders “write this and write that.” But he kept his cool and kept to the facts of the matter. After writing, he inquired what’s the obsession with OnePlus and was told he collected N650 million for a property. You can imagine the surprise and confusion that hit him, yet they felt he was acting; but actually, he was not privy to the transaction, and had the deal pulled through, he may never have known that his company was involved in such transaction. Then, he was shown a report of the Presidential Committee on Arms Deals which asked the EFCC to investigate the purchase of a safe house where it was alleged that N650 million was paid to his company through the Office of the National Security Adviser (ONSA), headed by Colonel Sambo Dasuki (Rtd.), without requisite contract documents. Azibaola, at this stage, became more confused.

As it turned out, and as in security property purchase practices, highly classified security houses where high profile persons are lodged are discreetly procured by security agencies in other entities’ names. So, as it was, Oneplus Holding Company was used by the office of the NSA without the knowledge of Azibaola Robert, or any of the company’s directors.

During investigation into the finances of the ONSA, under the Presidency of Goodluck Jonathan, and tenure of Col. Sambo Dasuki (Rtd.), the EFCC found an entry where Oneplus Holdings was entered against a house purchase which triggered investigation leading to his arrest. Instructively, no money was paid to Oneplus Holdings or any of the directors of the company. Rather, the NSA paid the alleged N650m directly to the agent of the owner of the property, One Tunji Abayomi & co, with whom it negotiated directly, without the knowledge of Oneplus Holding.

While Azibaola was in detention, Messrs. Tunji Abayomi & co, the direct recipient of the funds, returned the N650m paid to it to the coffers of the EFCC, again in the name of Oneplus and, again, without Azibaola’s knowledge. But in the course of their investigation the EFCC, on running a check on the accounts of the company, apparently to check if the refund from the deal was credited to OnePlus, saw another legitimate transaction which it suo moto, in a forum-shopping style, commenced investigation. That began the sour tale of a proxy war where two elephants dueled and the grass suffered, in which Azibaola suffered an untold ordeal.

On June 7, the EFCC slammed a seven-count charge, which was later amended to nine counts, on Azibaola and his wife Stella, bordering on money laundering before Justice Nnamdi Dimgba, of the Federal High Court Abuja. With Chief Chris Uche SAN, as his defence counsel, the legal firework started. On pleading not guilty, he was remanded in Kuje, and his wife at Suleja correctional facilities respectively pending hearing of motion for bail.

Azibaola and Stella, his wife, who was suckling a child, were eventually granted bail on very novel stringent conditions – N500 million each and two sureties each with landed property with C.of.O in Maitama or Asokoro and evidence of tax payments.

Acting on recommendation made by his predecessor, General Owoeye Azazi (Rtd), the former National Security Adviser (NSA) Sambo Dasuki had asked Azibaola, whom he understood had played different strategic roles in peace building in the Niger Delta region for years, especially during the crisis that engulfed the region prior to amnesty being granted to the ‘warlords’, to intervene.

While there was boost in oil production following the granting of general amnesty to the agitators, it became evidently clear a new kind of economic threat, of criminal activities of mindless oil bunkering in collusion with security agencies was taking hold in the region, leading to fast dwindling of Nigeria’s oil production which consequently had negative impact on the revenues of the country.

Several efforts to curb the menace by other means yielded no result, consequently, a remote security system with the aid of foreign experts was designed for implementation. This entailed the building of infrastructure which was time consuming. While that proceeded, the NSA required an immediate intervention in terms of pacifying the illegal artisanal elements to cease bursting pipes and syphoning crude from the pipelines.

It was for the reason that then President Goodluck Jonathan approved $2 billion for immediate release by the NNPC to the NSA both for the infrastructure and for immediate human intervention. It was here that the then NSA Dasuki found Azibaola’s skills as a key player in the region useful, needed and was required to intervene with the sum of $40m within a one-year time frame. His brief included reach-out to the illegal bunkerers and persuade them with stipends to stop their activities and go into other meaningful and productive trades for the safety of the environment and health of the economy which relies on oil. As at the time of the first appraisal, his efforts had saved 300,000 barrels of crude oil daily, and for this, he received the commendation of the then NSA.

The approval for the funds remitted to his company, Oneplus, was passed through due process, signed by no fewer than 11 officers within the NSA and the office of the Secretary to the Government of the Federation. Robert was not privy to the purpose stated in the memo on which the approval was made. It was later understood during his trial, that the fund was discreetly approved for ‘Tactical Communication Kits for Special Forces’, for which the EFCC alleged he was expected to make physical supplies to the armed forces, which he did not. But Azibaola disputed the EFCC’s assertion. He maintained during his arrest, interrogation and subsequently trial that the funds were meant for curbing of the menace of illegal oil bunkering in the Niger Delta.

As it was later found by the trial judge, such discrete or ‘disguised’ payments were very normal in security circles to protect the real intended mission from failing. Unfortunately, this was completely and deliberately misinterpreted or misunderstood by the EFCC operatives, who insisted the Azibaola failed to supply the alleged equipment and, therefore, tagged it money laundry. So began the battle for freedom, saving his name and those of his family and companies that ended at the Appeal Court and suffered 33 adjournments, 23 at the instance of the court, seven by the EFCC and three by the defence. The case lasted two years and 11 months.

The first priority for freedom was his wife, Stella, because of her baby and every effort was made to meet the conditions and by June 14, she met her bail conditions and was released from remand. Azibaola was to follow two days later. After that, the prosecution amended the charges and new pleas were taken but they were allowed to continue on the bails they had met the conditions.

After opening its case, which was now handled by then Mr. Silvanus Tahir, now a Senior Advocate of Nigeria (SAN), the prosecution called 10 witnesses while the defence called two. When trial began, all prosecution witnesses testified that prior to the case; they had never met the accused persons before, except Mr. David Mpke, the EFCC operative who met him in the course of investigation of the case and his detention ordeal. It was a straight case, as evidence showed that though OnePlus Nigeria Limited was the name used in purchasing a safe house, but payment and refund never went through the company; the said agent, Tunji Abayomi who received the funds, had never met Mr. Azibaola, nor been to the office of Oneplus; and had no authority from Oneplus to return any money on its behalf. The EFCC also had no petition against OnePlus because of the dealings it had with the Office of the NSA.

On closing its case after the 10 witnesses, Defence Counsel Chief Uche SAN filed a no-case submission, insisting that prosecution had not made any case to warrant the trial of his client.

Chief Uche had submitted that, “The entirety of the prosecution’s case is based on a cocktail of speculation; supposition, guesswork and suspicion, and we consequently urge my lord to hold that the prosecution has clearly failed to prove its case beyond reasonable doubt as required by law. Both the PW1 and the PW10 all agree that Col. Mohammed Sambo Dasuki (Rtd.) is a central figure in this matter. In fact, the PW1 stated that it is only Col. MS Dasuki (Rtd.) that is in position to categorically state the purpose of the payment, whether it was disguised or not. The PW10 conceded that despite the materiality of the evidence of Col. M.S. Dasuki (Rtd.) he did not obtain any statement nor question Col. Dasuki in the course of his investigation, nor give evidence as to why they did not obtain a statement from him, particularly since at the time of the investigation, being after he had left office as the NSA, the said Col. Dasuki (Rtd.) has been in the custody of the State.

“The detention, the investigation, and arraignment of the defendants for money laundering in this matter has not been done in good faith. To have detained the 1st defendant in custody by a prosecution agency for 3 months leaves a lot to be desired. Bearing in mind that there was no complaint, no accusations, no report and no petition against the defendants, it is obvious that the Prosecution had no business arraigning the Defendants in this matter in the first place except because of their suspected relationship with a former highly placed political figure. Consequently, the Defendants have been made to suffer as a scapegoat of political witch-hunting.”

In his ruling, Justice Dimgba agreed with the Defence on seven of the counts and subsequently discharged Mr. Azibaola and his wife on all of them, but retained two, to enable the court hear Azibaola’s explanation on the purpose of the payment, which subsequently went through full trial.

Part of his ruling, which exonerated Azibaola’s wife, Justice Dimgba held that, “there was nowhere the 2nd Defendant was mentioned. It therefore appears that the only reason why she was charged as a Defendant is simply because she is a director of the 3rd Defendant, and in that capacity is a signatory to the account of the 3rd Defendant. She also was probably charged because she is the spouse of the 1st Defendant, the main alter ego of the 3rd Defendant. In my view, these are not enough. Criminal liability is personal; it is not vicarious. The 3rd Defendant as a corporate person is criminally responsible in its own capacity; hence it being charged as the 3rd Defendant in the amended Charge. Where person such as its directors or other agents are complicit with it in an offence, they should also be charged in their own capacity. But where evidence does not show such complicity, there is no business charging them simply because they are directors, unless a law has very explicitly required this to be the case. On the strength of the evidence adduced, I see no sufficient evidence linking the 2nd Defendant.”

Based on the ruling, Tahir went ‘upstairs’ in an interlocutory appeal which Chief Uche objected to as mere academic exercise. In between the interlocutory appeal and hearing date by the Appeal Court, hearing at the lower court had been concluded and a judgement discharging and acquitting Mr. Azibaola and Oneplus Holding had been entered by Justice Dimgba. It was on this strength that Chief Uche (SAN) challenged the interlocutory appeal as mere academic exercise since there was a final judgment on the matter at the lower court which the appellant had not appealed.

The Appeal court, presided over by Justice Jonah Adah in its reasoning decided to proceed with the appeal, ‘for whatever its worth’ to satisfy all parties. As reasoned by the Appeal Court “being a criminal case every aspect of it had to go through proper legal considerations so as not to gloss over any detail and proof.”

The Appeal Court went through all the details contained in the counts which Tahir faulted the decision of the lower court on and in the end, the panel of Justices, led by Justice Jonah Adah, with Justices Ridwan Maiwada Abdullahi and Abubakar Sadiq Umar, in a 44-page judgment, sifted through the charges and arguments as well as the submissions of the Defence and came to a unanimous conclusion that the charges did not disclose any offence that could sustain conviction, more so as the charges did not establish prima facie case to sustain the case and, therefore, dismissed the entire appeal.

“There is no evidence in the instant case to establish these ingredients. The sum of $40 million paid into the account of respondents was not shown to be sum forming part of an unlawful act to the knowledge of the appellants. It follows therefore that the respondents did not establish a prima facie case in this circumstance.

“From the foregoing therefore, I am of the firm conclusion that this appeal is lacking in merit. The appeal is therefore dismissed,” he held.

In their findings, they observed that there were no testimonies to show any contact or knowledge of the accused with the witnesses to establish conspiracy while the issue that led into their looking into the account of the company turned out to have had nothing to do with them, except the use of the name of the company to do a security transaction which payment and refund did not enter the account of the company or benefit them in any way, while the reason for giving them the $40 million was a genuine security duty he was called to do with full knowledge of his capacity to achieve, which he did and, therefore, committed no offence to be charged.

At the lower court, where Mr. Azibaola has been discharged and acquitted for the two remaining counts which survived the no-case submission, he had entered the witness stand for this testimony. The court, packed full of journalists, lawyers, relatives and sympathisers, Azibaola responded to the prosecution’s case that he and his wife were living luxurious lifestyle and even bought a yacht. He told the court: “My lord, before my God, I don’t have a yacht; I don’t have any foreign accounts; I don’t have anything to which this money was applied to that is abroad other than the purpose to which this money was given. The purpose was for civil response to oil bunkering and theft in the Niger Delta.”

He also had, while giving evidence during the trial, said, “Nowadays, any security personnel posted to the Delta suddenly becomes a car owner or house owner. It is because of the collusion of our security system. From my background in the oil industry, the security agencies go to meetings with the President and the chief executives of the oil industry and talking about solution to the issues of oil bunkering in the Niger Delta and the chief executives will not say anything. The President will ask them the cause, why their pipelines are being blown, why crude oil theft is rising, and all that. They would not have answers. One of the reasons is that the problem of oil theft in the Niger Delta lies in the hands of those who are sitting round the table, including possibly the Chief of Army Staff. I am not referring to anyone in particular. Any MD of Oil Company who ventures to say what the challenges are is likely to face repercussion against his business when they go back to the Niger Delta. So, they speak in hushed tones in the Nigeria oil industry.”

Delivering the final judgment on the two counts, Justice Dimgba held that, “In the final analysis, having reviewed all that have been provided first by the prosecution in proof of their case, and second by the defence in aid of their defence, in terms of oral and documentary evidence, as well as reviewed and evaluated the contentions made by counsel in the written submissions and oral adumbrations of same, I am inclined to resolve the issue which I identified in the beginning part of this opinion in favour of the Defence. I am not convinced that the prosecution has discharged the burden placed on them by law to prove the guilt of the defendants beyond reasonable doubt on any of the remaining two counts of the charge which the Defendants were called upon to present a defence on. Reasonable doubts do exist in prosecution’s case as made out in the body of this opinion. As the law commands, I am bound to resolve the doubts in favour of the Defendants as being not guilty as charged on both counts, and subsequently discharge and acquit them on both counts as listed in the charge.”

With the above, Azibaola walked back into freedom but emotionally bruised in an arrest, trial where he was found not guilty that lasted for more that three years. During this time, all his personal and business bank accounts were frozen by the EFCC; his company, Kakatar CE Limited’s multi-billion-naira worth contracts stalled and hundreds of his construction workers were rendered jobless, his company’s yard at Maitama was unlawfully taken over by the army and all his equipment rot away, vandalised or stolen.

In the end, from the exhaustive review of the volumes of court papers, the testimonies of prosecution and defence witnesses, and the court judgements at both the High Court and Court of Appeal, it became crystal-clear that the prosecution of Azibaola Robert, his wife, Stella, and company mere persecution. The EFCC had ample opportunity to confirm from the Office of the NSA that it is normal practice in security circles of buying safe houses discreetly. The Commission saw with certainty that the money in question never passed through his company’s account, but chose to be blinded. The Commission had same opportunity to confirm if, in security cycles, a memo could disguise an operation using another name, yet it was blinded. In the end, the only reason why the EFCC charged Azibaola and his wife was because an internal memo of a Government security agency, which he had no knowledge of or control over, saying the funds released to his company were meant for ‘tactical communications equipment for special forces’, and he said it was meant for something else.

As Hon. Justice Dimgba said in his ruling (in reference to the ONSA internal memo):
“… in evidence it was clear that such description was not one which the Defendants were privy to. It was clear that such description was really a matter of an internal administration of the Government… The Defendants have no role to play in the said description of the payment”.

The onus, therefore, was on the EFCC to find out the exact purpose of the funds, rather than charging innocent man and making him pass through a gruelling ordeal, which the court later found him blameless – discharged and acquitted.