Alleged N4.8bn Fraud: Appeal Court Adjourns Ibeto’s Suit, Suspends Bench Warrant

Wale Igbintade

The Court of Appeal, Lagos Division has fixed September  19, for hearing of the appeal filed by the Chairman of Ibeto Energy Development Company, Cletus Ibeto, challenging the jurisdiction of Lagos State High Court in Ikeja to try him over an alleged N4.8 billion fraud.

The appellate court presided over by Justice Muhammed Mustapha adjourned the appeal to await the report of ongoing negotiations between the Economic and Financial Crimes Commission (EFCC) and the defendant. 

Justice Ismail Ijelu had ordered the businessman’s arrest after he failed to appear before the court on many occasions to take his plea over the alleged fraud case despite repeated hearing notices served on him.

The anti-graft agency had charged the defendant alongside his companies, Ibeto Energy Development Company and Odoh Holdings Ltd, on a 10-count charge of conspiracy, fraud, forgery and fraudulent use of documents.

However, dissatisfied with the order and the refusal of the court to hear his preliminary objection, the defendant filed an appeal before the Appeal Court, formulating seven grounds for appeal.

Also, during  yesterday’s  proceeding, Justice Mustapha and other panel members, Abdullahi Mahmud Bayero and Paul Bassi suspended the enforcement of the bench warrant issued on November 3, 2023, against the Appellant by Justice Ismail Ijelu.

The justices suspended the warrant after Ibeto’s lawyer, Chief Wole Olanipekun and the EFCC’s counsel, Adebisi Adeniyi, informed the court that the parties are in the process of settling the matter and that the appellant has refunded about N1.7 billion to the Commission.

When the case was called, Adeniyi informed the court that the appellant had been making payment in line with the settlement proposal, so the EFCC felt that going ahead with the appeal might not be appropriate. 

He also told the court that the matter had started de novo before another lower court judge and the EFCC felt that the appeal had become academic and as such, the anti-graft agency had filed an affidavit showing the settlement and all that has transpired in the case so far.

Responding, Chief Olanipekun confirmed that the parties are settling the matter in line with a Rivers State High Court judgment.

He, however, urged the court to set aside the bench warrant against his client since the Appeal Court is not seized of the matter.

In a short ruling, Justice Mustapha suspended the enforcement of order as the warrant of arrest can not continue to hang over the defendants head since he has started settling the matter out of court. 

He therefore, ruled:  “The bench warrant is now suspended and we encourage parties to continue with the negotiations until the next adjourned date of September 16.”

The appellant, through his lawyer, Chief Wole Olanipekun, argued that his appeal raised the issue of constitutional territorial jurisdiction and that it is of such a threshold nature that it demands to be heard and determined before his client can be prosecuted.

He also contended that his client’s presence in court and his arraignment are not mandatory or preconditions for the hearing of a preliminary objection touching on the court’s jurisdiction, which was already ripe for adjudication.

The appellant, therefore, asked the Court Appeal to set aside or vacate the warrant of arrest and also strike out the suit before the lower court. 

But the counsel to the EFCC,  Rotimi Jacobs (SAN), had argued that it is only when the appellant appears before the court and takes his plea to the charge that issues are joined in a criminal trial and that until this happens, he is technically not under the jurisdiction of the court. 

Jacobs also submitted that the appearance of the appellant’s counsel is insufficient because the law empowers the court, when satisfied that the defendant is absent without a valid excuse, to issue a bench warrant against him to secure his presence in court.

He further stated that the intention of the lawmaker in enacting section 396 (2) of ACJA is that any objection regarding the validity of Information or a charge should only be raised after the plea of the defendant has been taken. 

“It is not the intention of the lawmaker to give a Defendant who is challenging the validity of an Information or a charge preferred against him the liberty to stay in his house and brief a counsel to appear in court on his behalf without him appearing in court. 

“It is clear that the lower court was patient with the Appellant enough, but the Appellant deliberately refused to appear before the court. It is, therefore, unfair for the Appellant to argue that the lower court disregarded its record. The Appellant and the other defendants delayed the proceedings by their deliberate refusal to attend the court’s proceedings.