S v Okah (SS94/2011) [2013] ZAGPJHC 6; 2015 (2) SACR 561 (GJ) (21 January 2013)

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[2013] ZAGPJHC 6
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S v Okah (SS94/2011) [2013] ZAGPJHC 6; 2015 (2) SACR 561 (GJ) (21 January 2013)

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REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
Registrar’s Ref No:
SS94/2011
DPP’S Ref No:
JPV2011/0158
In the matter between:
THE
STATE
And
HENRY
EMOMOTIMI OKAH
The
Accused
JUDGMENT
C. J. CLAASSEN J
:
INTRODUCTION
[1]
Nigeria is
an oil-rich country. The evidence disclosed that the extraction of
oil represents 95% of its Gross Domestic Product.
The oil is
extracted from the southern states of Nigeria known as the Niger
Delta area. However, little of this income was re-invested
in the
upgrading of the infra structures and other social requirements of
the Niger Delta. Hence, a general uprising by the populace
of this
region occurred against the government of Nigeria. Several militant
groups began attacking the large oil companies’
pipelines and
hijacked their executives demanding ransom in exchange for their
release. The ransom was utilized to purchase more
armaments to
further the armed struggle. These various militant groups joined
forces under an umbrella organisation known as “The
Movement
for the Emancipation of the Niger Delta” (“MEND”)
The origins and context of MEND and the armed struggle
in the Niger
Delta is succinctly described in the admitted documents
[1]
in the following terms:
“
From the point of
view of MEND and its supporters, the people of the Niger Delta have
suffered an unprecedented degradation of their
environment due to
unchecked pollution produced by the oil industry. As a result of this
policy of dispossessing people from their
lands in favour of foreign
oil interest, within a single generation, many now have no ability to
fish or farm. People living in
the Niger Delta have found themselves
in a situation where their government and international oil companies
own all the oil under
their feet, the revenues of which are rarely
seen by the people who are suffering from the consequences of it.
. . .  .
Over the last twenty
years various political movements and activists have emerged in
opposition to the perceived injustices perpetrated
upon the people of
the Niger Delta by the government and the oil companies. These were
usually non-violent; Ken Saro-Wiwa was the
most famous activist.
Saro-Wiwa was an Ogoni activist who was executed by the Nigerian
government in 1995 on what many believe
to be deliberately false
charges with the aim of silencing his vocal opposition to the oil
interests in Nigeria. In Saro-Wiwa’s
footsteps came others who,
instead of believing in non-violent activism, advocated violence as
resistance to the ostensible enslavement
of their people. Militants
in the delta enjoy widespread support among the region’s
approximately 20 million people, most
of whom live in poverty despite
the enormous wealth generated in the oil-rich region.”
[2]  The accused, a
46-year old Nigerian male citizen, espoused the sentiments stated
above. He is a permanent resident with
his wife and children in the
Republic of South Africa. At the time of his arrest on 30 September
2010, he was residing with his
family at 19 Dibberic Drive, Bassonia
in the district of Johannesburg. He was arrested for his alleged
involvement in the planning
and organising of two car bomb attacks in
Nigeria wherein several people were killed and many injured.
[3]  He was charged
with thirteen counts in contravention of the Protection of
Constitutional Democracy against Terrorist and
Related Activities Act
33 of 2004. Counts 1 to 12 arose from two incidents which occurred
respectively on 15 March 2010 in Warri
and 1 October 2010 Abuja,
Nigeria. In each instance two car bombs exploded killing and injuring
several people and causing damage
to property. In the process certain
internationally protected persons were also threatened by the
explosions. It is further alleged
that the accused provided the
finance and the necessary equipment in order for these bomb
explosions to take place. Each of the
main counts 1 to 12 carry
alternative charges of conspiracy to commit such crimes alternatively
to induce and/or incite others
to commit such crimes. Counts 1, 3, 5,
7, 9 and 11 relate to the bombings which occurred on 15 March 2010 in
Warri. Counts 2, 4,
6, 8, 10 and 12 relate to the bombings which
occurred on 1 October 2010 in Abuja, Nigeria.
[4]  Count 13
alleges that the accused unlawfully and intentionally threatened
certain South African nationals employed in
Nigeria with terrorist
activities and to disrupt their businesses alternatively to take
their employees hostage.
JURISDICTION OF THIS
COURT
[5]  One may well
ask: Why is the accused being tried in a South African court? South
Africa is a member of the United Nations
and therefore committed to
executing its obligations in terms of international instruments
dealing with terrorism and related activities.
South Africa is bound
to do so by virtue of the fact that it became a signatory and party
to the following United Nations Universal
Conventions relevant to
this matter namely:
1.  The Convention
on the Prevention and Punishment of Crimes against Internationally
Protected persons including Diplomats,
adopted by the General
Assembly of the United Nations on 14 December 1973;
2.  The
International Convention Against the Taking of Hostages, adopted by
the General Assembly of the United Nations on 17
December 1979;
3.  The
International Convention for the Suppression of Terrorist Bombings,
adopted by the General Assembly of the United Nations
on 15 December
1997;
4.  The Convention
on the Prevention and Combating of Terrorism, adopted by the
Organisation of African Unity, at Algiers on
14 July 1999; and
5.  The
International Convention on the Suppression of the Financing of
Terrorism, adopted by the General Assembly of the United
Nations on 9
December 1999.
[6]  Inspired by the
aforesaid international instruments as well as the destruction of the
Twin Towers in New York on 11 September
2001, the Security Council of
the United Nations passed Resolution 1373/2001 on 28 September 2001.
Resolution 1373/2001 reaffirmed
that any act of international
terrorism constituted a threat to international peace and security
and called upon States to work
together to prevent and suppress
terrorist acts, through increased cooperation and full implementation
of the relevant international
conventions relating to terrorism. The
relevant provisions of Resolution 1373/2001 are as follows:
“
Clause 1
‘
Decides
that all States shall:
(a)  Prevent and
suppress the financing of terrorist acts;
(b)  Criminalise the
wilful provision or collection, by any means, directly or indirectly,
of funds by their nationals or in
their territories with the
intention that the funds should be used, or in the knowledge that
they are to be used, in order to carry
out terrorist acts;…’
Clause 2
‘
Decides
…that
all States shall:
. . . .
(c) Deny safe haven to
those who finance, plan, facilitate or commit terrorist acts, or
provide safe havens;
(d)  Prevent those
who finance, plan, facilitate or commit terrorist acts from using
their respective territories for those
purposes against
other
States or their citizens
;
(e)  Ensure that any
person who participates in the financing, planning, preparation or
perpetration of terrorist acts or in
supporting terrorist acts is
brought to justice and ensure that, in addition to any other measures
against them, such acts are
established as serious criminal offences
in domestic laws and regulations and that
punishment
duly
reflects the seriousness of such terrorist acts;
(f)  Afford one
another the greatest measure of assistance in connection with
criminal investigations or criminal proceedings
relating the
financing or support of terrorist acts, including in obtaining
evidence in their possession necessary for the proceedings…’
Clause 3
‘
Calls
upon
States to:
(a)  …
(b)  Exchange
information in accordance with international and domestic law and
cooperate on administrative and judicial matters
to prevent the
commission of
terrorist acts;
(c) Cooperate,
particularly through bilateral and multilateral arrangements and
agreements,
to prevent and suppress terrorist attacks
and
to
take action against perpetrators of such acts
;…’
Clause 4 the Security
Council:
‘
Notes
with
concern the close connection between international terrorism and
transnational organised crime…and in this regard
emphasises
the need to enhance coordination of efforts on national, subregional,
regional and international levels in order to strengthen
a global
response to this serious challenge and threat to international
security.’
Clause 5 the Security
Council:
‘
Declares that
acts, methods and practices of terrorism are contrary to the purposes
and principles of the United Nations
and
that knowingly
financing, planning and inciting terrorist attacks are also contrary
to the purposes and principles of the United
Nations.’”
[7]  The
incorporation of these international instruments and Resolution 1373
into our municipal law occurred by virtue of
the Protection of
Constitutional Democracy against Terrorist and Related Activities Act
33 of 2004 (“the Act”).
a.  The Act came
into force on 20 May 2005 and according to its preamble was enacted:
“
to provide for
measures to prevent and combat terrorist and related activities; to
provide for an offence of terrorism and other
offences associated or
connected with terrorist activities; to provide for Convention
offences; to give effect to international
instruments dealing with
terrorist and related activities; to provide for a mechanism to
comply with United Nations Security Council
Resolution, which are
binding on member States, in respect of terrorist and related
activities; to provide for measures to prevent
and combat the
financing of terrorist and related activities; to provide for
investigative measures in respect of terrorist and
related
activities; and to provide for matters connected therewith.”
b.  The remaining
part of the preamble lists all the various international instruments
to which South Africa has become bound
including the Security Council
Resolution 1373/2001 referred to above. This list is repeated in the
definition of “Instruments
dealing with Terrorist and Related
Activities” in the definition section 1 of the Act.
c.  The concept of
“Terrorist Activity” is given a very wide definition in
section 1 of the Act and means:
“
(
a
)
any act committed in or outside the Republic, which –
(i)  involves the
systematic, repeated or arbitrary use of violence by any means or
method;
(ii) involves the
systematic, repeated or arbitrary release into the environment or any
part of it or distributing or exposing the
public or any part of it
to –
(
aa
)  any
dangerous, hazardous, radioactive or harmful substance or organism;
(
bb
)  any
toxic chemical; or
(
cc
)  any
microbial or other biological agent or toxin;
(iii)  endangers the
life, or violates the physical integrity or physical freedom of, or
causes serious bodily injury to or
the death of, any person, or any
number of persons;
(iv)  causes serious
risk to the health or safety of the public or any segment of the
public;
(v) causes the
destruction of or substantial damage to any property, natural
resource, or the environmental or cultural heritage,
whether public
or private;
(vi)  is designed or
calculated to cause serious interference with or serious disruption
of any essential service, facility
or system, or the delivery of any
such service, facility or system, whether public or private,
including, but not limited to –
(
aa
)  a
system used for, or by, an electronic system, including an
information system;
(
bb
)  a
telecommunication system;
(
cc
)  a
banking or financial service or financial system;
(
dd
)  a
system used for the delivery of essential government services;
(
ee
)  a
system used for, or by, an essential public utility or transport
provider;
(
ff
)  an
essential infrastructure facility; or
(
gg
)  any
essential emergency services, such as police, medical or civil
defence services;
(vii)  causes any
major economic loss or extensive destabilisation of an economic
system or substantial devastation of the
national economy of a
country; or
(viii) creates a serious
public emergency situation or a general insurrection in the Republic,
whether the harm contemplated in
paragraphs (a)(i) to (vii) is or may
be suffered in or outside the Republic, and whether the activity
referred to in subparagraphs
(ii) to (viii) was committed by way of
any means or method; and
(b)  which is
intended, or by its nature and context, can reasonably by regarded as
being intended, in whole or in part, directly
or indirectly, to –
(i) threaten the
unity and territorial integrity of the Republic;
(ii)  intimidate, or
to induce or cause feelings of insecurity within, the public, or a
segment of the public, with regard
to its security, including its
economic security, or to induce, cause or spread feelings of terror,
fear or panic in a civilian
population; or
(iii) unduly compel,
intimidate, force, coerce, induce or cause a person, a government,
the general public or a segment of the public,
or a domestic or an
international organisation or body or intergovernmental organisation
or body, to do or to abstain or refrain
from doing any act, or to
adopt or abandon a particular standpoint, or to act in accordance
with certain principles, whether the
public or the person,
government, body, or organisation or institution referred to in
subparagraphs (ii) or (iii), as the case
may be, is inside or outside
the Republic; and
(c) which is committed,
directly or indirectly, in whole or in part, for the purpose of the
advancement of an individual or collective
political, religious,
ideological or philosophical motive, objective, cause or
undertaking;”
d.  The concept of
“Terrorist and Related Activities” are also defined as
meaning:
“
any act or
activity related to or associated or connected with the commission of
the offence of terrorism, or an offence associated
or connected with
a terrorist activity, or a Convention offence, or an offence referred
to in sections 11 to 14.”
e.  Section 1(3) and
(4) exclude from the definition of terrorist activities certain
actions which could constitute a defence
to any charge on terrorism
under the Act. Section 1(4) states:
“
(4)
Notwithstanding any provision of this Act or any other law, any act
committed during a struggle waged by peoples, including
any action
during an armed struggle, in the exercise or furtherance of their
ligitimate right to national liberation, self-determination
and
independence against colonialism, or occupation or aggression or
domination by alien or foreign forces, in accordance with
the
principles of international law, especially international
humanitarian law, including the purposes and principles of the
Charter
of the United Nations and the Declaration on Principles of
International Law concerning Friendly Relations and Cooperation among

States in accordance with the said Charter, shall not, for any
reason, including for purposes of prosecution or extradition, be

considered as a terrorist activity, as defined in subsection (1)”.
f. Section 1(5) excludes
as a defence to a charge of terrorism under the Act the following:
“
Notwithstanding
any provision in any other law, and subject to subsection (4), a
political, philosophical, ideological, racial,
ethnic, religious or
any similar motive, shall not be considered for any reason, including
for purposes of prosecution or extradition,
to be a justifiable
defense in respect of an offence of which the definition of terrorist
activity forms an integral part.”
g.  Section 2 of the
Act establishes the offence of terrorism in the following terms:
“
Any person who
engages in a terrorist activity is guilty of the offence of
terrorism.”
h.  Section 3 of the
Act creates as offences certain actions which are regarded as
associated or connected with terrorist activities.
In particular, it
is stated that the provision of a skill or expertise or training or
instruction to engage in any terrorist activity
will be regarded as
an offence associated with a terrorist activity.
i. Section 4 creates the
use of property associated with any terrorist activity as offences.
j. Section 5 creates
offences relating to explosive or other lethal devices and reads as
follows:
“
Any person who
intentionally delivers, places, discharges or detonates an explosive
or other lethal device in, into or against a
place of public use, a
state or government facility, a public transport facility, a public
transportation system, or an infrastructure
facility, with the
purpose, amongst others, of causing –
(a)  death or
serious bodily injury; or
(b)  extensive
damage to, or destruction of such a place, facility or system, where
such destruction results in or is likely
to result in major economic
loss,
is guilty of an offence
relating to explosive or other lethal devices.”
k.  Section 8
provides for the creation of offences relating to causing harm to
internationally protected persons. Who is regarded
as an
internationally protected person is defined in section 1 as
including, inter alia, any Head of State, a head of government
or a
minister of foreign affairs or a representative or official of a
State or other agent of any international organisation or

intergovernmental organisation.
l. Section 14 deals with
threats, attempts, conspiracy and inducement of other persons to
commit offences and reads as follows:
“
Any person who –
(a)  threatens;
(b)  attempts;
(c) conspires with any
other person; or
(d)  aids, abets,
induces, incites, instigates, instructs or commands, counsels or
procures another person,
to commit an offence in
terms of this Chapter, is guilty of an offence.”
m.  Section 15
grants express jurisdiction to courts in the Republic to try and hear
“specified offences” as defined
in section 1, which reads
as follows:
“’
specified
offence
’, with reference to section 4, 14 (in so far as it
relates to section 4), and 23, means –
(a)  the offence of
terrorism referred to in section 2, an offence associated or
connected with terrorist activities referred
to in section 3, a
Convention offence, or an offence referred to in section 13 or 14 (in
so far as it relates to the aforementioned
sections); or
(b)  any activity
outside the Republic which constitutes an offence under the law of
another state and which would have constituted
an offence referred to
in paragraph (a), had that activity taken place in the Republic;”
n.  In terms of
section 15(1)(a), Courts in the Republic of South Africa are granted
extraterritorial jurisdiction in respect
of terrorist offences if:
“
(1) (a) the
accused was arrested in the territory of the Republic,…”
It is common cause that
the accused in the present matter was arrested at his residence in
Bassonia in Johannesburg.
o.  Jurisdiction is
further granted in terms of section 15(2) which reads as follows:
“
Any act alleged to
constitute an offence under this Act and which is committed outside
the Republic by a person other than a person
contemplated in
subsection (1), shall, regardless of whether or not the act
constitutes an offence or not at the place of its commission,
be
deemed to have been committed also in the Republic of that –
(a)  …
(b)  person is found
to be in the Republic; and
(c) person is for one or
other reason not extradited by the Republic or if there is no
application to extradite that person.”
It is common cause that
the accused in the present matter was not extradited to Nigeria.
p.  Jurisdiction is
further qualified in section 15(3) which states the following:
“
Any offence
committed in a country outside the Republic as contemplated in
sub-section (1) or (2), is, for the purpose of determining
the
jurisdiction of a court to try the offence, deemed to have been
committed –
(a)  at  the
place where the accused is ordinarily resident; or
(b)  at the accused
person’s principal place of business.”
q.
Section
16(1) prohibits any prosecution under Chapter 2 of the Act without
written authority of the National Director of Public
Prosecutions as
appointed in terms of section 179(1) of the Constitution. In terms of
Exhibit “A” such authorisation
was granted. The purpose
of the section is to ensure that a charge under the terrorism Act is
taken by the highest official after
a proper consideration of all
relevant facts.
[2]
[8]  By virtue of
the above, I am of the view that the State has succeeded in
establishing the jurisdiction of this Court to
hear this matter.
However, counsel for the accused sought to rely on the provisions of
section 1(4) to oust the jurisdiction of
this Court to try the
accused. Such reliance is misplaced. Section 1(4) excludes from the
ambit of the Act any armed struggle in
the exercise of a people’s
legitimate right to national liberation, self-determination and
independence against colonialism,
or occupation or aggression or
domination by alien or foreign forces in accordance with the
principles of international law. As
stated earlier, it is common
cause that a militant campaign was waged against the Nigerian
Government by its own civilians living
in the southern states of
Nigeria in protest to the alleged wrongful application of funds
derived from oil extraction occurring
within the jurisdiction of
those southern states. Subsequent to the grant of amnesty by the
Government of Nigeria to its civilians
who had been engaged in such
armed struggle, and subsequent to the accused accepting the terms of
such amnesty for himself, no
further armed struggle was legitimate.
In any event, at no stage prior to amnesty was the struggle directed
at the occupation of
foreign forces or for the purpose of national
liberation or self-determination and independence against
colonialism. No basis in
fact or in law was placed before this Court
by the accused to bring himself within the four corners of section
1(4). Counsel’s
argument in this regard is therefore rejected.
PLEA PROCEDURE
[9]  The accused
pleaded not guilty to all counts as well as the alternative counts
thereto. No plea explanation was offered
and the accused elected to
remain silent. At all times he was represented by Mr M. I.
Maunatlala.
[10] At the time of the
pleading stage, the minutes of two pre-trial conferences were handed
in as Exhibits “I” and
“J” respectively. The
correctness thereof was confirmed by the signatures of both State
counsel and the accused’s
legal representatives. It appeared
from these documents that the accused was not willing to make any
admissions other than those
listed in paragraphs 3.3.1 – 3.6.4
in Exhibit “J”. Subsequently and during the trial the
accused made a substantial
amount of admissions in terms of
section
220
of the
Criminal Procedure Act 51 of 1977
as listed in Exhibits
“GG” and “GG1”.
[11] The State was
represented by Mr S. Abrahams. The State tendered
viva voce
evidence of thirty two witnesses one of which was recalled. It would
not be necessary to refer to the evidence of all the witnesses
for
purposes of this judgment for the reasons set out in the next
paragraph.
[12] On behalf of the
defence only two witnesses were called namely Colonel N. G. Zeeman,
the investigating officer in this matter
and Mr Ayodeji Majekodumni,
an information technology expert. The defence closed its case without
calling the accused to testify.
Hence, much of the defence case which
was put to the State witnesses during cross-examination never
materialised. The defence was
therefore obliged to argue its case
largely on the State evidence.
THE COMMON CAUSE FACTS
[13] As indicated earlier
in the judgment the accused made a number of admissions in terms of
section 220
of the
Criminal Procedure Act 51 of 1977
which are
contained in Exhibit “GG” pages 1 to 276 and in Exhibit
“GG1” pages 1 to 398. Not all of the
admissions regarding
the documentation in these two exhibits are relevant for the purposes
of this judgment. However, I will refer
to those that are material
for this judgment.
[14] It is admitted that
the list of eleven people named in annexure “A” to the
indictment sustained serious bodily
injuries as a result of the
explosion of two vehicle-borne improvised explosive devices (VBIED)
at Government House Annex, Warri,
Nigeria on 15 March 2010.
[15] The correctness is
admitted of the statements made by persons injured in the Warri
bombing being Blessing Eweta, Joseph Temisanren,
John Emakara, Tosan
Arurah, James Okakor, Faith Igiogio and Rebecca Okakor together with
photographs of the injuries suffered by
Blessing Eweta, Tosan Arurah
and Faith Igiogio.
[16]
The
correctness are admitted of the photographic album reflecting the
persons injured and the property damaged and the photographic
album
with a plan and key depicting the scene after the twin bomb blast at
Government House Annex, Warri.
[3]
[17]
The
correctness is admitted of the content of a post blast analysis
report of the twin car bombing at Government House Annex, Warri
on 15
March 2010 compiled by Edet Effanga.
[4]
The report confirms that on Monday, 15 March 2010 the Vanguard
Newspaper organised a Post Amnesty Dialogue for stakeholders in
the
Niger Delta states to promote sustainable peace and development in
the region. The occasion was attended by sundry dignitaries
including
his Excellency the Governor of the Delta State, Dr Emmanuel Ewenta
Uduaghan. At the commencement of the proceedings two
bombs exploded
along the NPA Expressway within an interval of ten minutes from one
another. The scene was successfully cordoned
off by 11:35.
Photographs were taken of the scene, the bodies of the victims and
the damaged vehicles. One of the car bombs was
a Mercedes Benz motor
vehicle. The analysis of a fragmented detonator found on the scene
indicated that TNT (dynamite) was used
as explosives. Analysis also
showed that the explosions were caused by improvised explosive
devices placed in two motor vehicles.
[18]
It is
further admitted that the names mentioned in annexure “B”
to the indictment to wit Romanos Alumona, John Chidera
Arua, Verty
Bala, Joshua Umaru, Onyena Ambrose Ozoko, Onah Alfred, Haruna Tijani,
Aladgoke and Omotosho Suleiman died on 1 October
2010 as a result of
injuries sustained at Eagle Square, Abuja, Nigeria due to the
detonation of two vehicle-borne improvised explosive
devices
(“VBIED”). In addition, the bodies aforementioned did not
sustain any further injuries. The bodies were correctly
identified.
The correctness of the death reports, post-mortem examination reports
and reports by medical practitioners was admitted.
[5]
[19]
The fifty
three persons named in annexure “C” to the indictment all
sustained serious bodily injuries as a result of
the explosion of two
VBIED’s at Eagle Square, Abuja on 1 October 2010. The
correctness of the reports from the National Hospital
and the State
House Medical Centre confirming the names and the injuries of the
victims are also admitted.
[6]
[20]
The
correctness is admitted of the affidavit of a Special Agent Bomb
Technician, Jeffrey Haverty, and his post blast analysis report
in
relation to the bombings at Eagle Square on 1 October 2010.
[7]
In paragraph 22 of his affidavit, Haverty concludes that one VBIED
was a 16 valve Honda vehicle and the second VBIED was a Mazda
626.
Two mobile telephone handsets to which wires were attached were
collected in close proximity to the location of the second
VBIED. As
a result of Haverty’s investigations on site, he compiled a
post blast explosive investigation report dated 6 October
2010
entitled “Double VBIED 50
th
Independence Anniversary 10/1/2010 Abuja, Nigeria”.
[8]
The report confirms that on 1 October 2010 at approximately 11:00
a.m. two car bombs exploded within ten to fifteen minutes from
one
another which were situated approximately a hundred metres apart. The
two VBIED’s were parked on the side of the Shehu
Shagari Way
opposite the Arcade Suite and Club and adjacent to the Millennium
Park. The correctness is also admitted of mobile
phone videos
captured by a witness taken after the first explosion and depicting
the second explosion.
[9]
The
location of the explosives in the Honda was assessed to be in its
boot.
[10]
The location of the
explosives in the second VBIED, i.e. the Mazda 626 was also assessed
to be in its boot.
[11]
The
close proximity to the Mazda 626 of the two mobile phones found is
indicated on photographs 169 and 171 of Exhibit “GG”.
The
report concludes with the following:
“
Method of
initiation for either VBIED is unknown at this time. While the
recovery of cell phones with wires in proximity to the
second VBIED
may indicate the presence of a remote controlled improvised explosive
device (RCIED) receiver, further laboratory
analysis is required. In
addition, video footage at the time of the incident indicates a large
crowd around the second VBIED at
the time of the detonation. Open
sources reporting, indicated that group responsible for the attacks
warned the Nigerian Government
prior to the attacks and claimed to
not want to kill or injure anyone. If this is true, the fact that the
second VBIED detonated
with a large crowd around it either indicates
the statement was false and the bomber knowingly detonated the device
with a crowd
present or the device was timed and the bomber had no
control as to the circumstances surrounding the device at the time of
detonation.”
[21]
The
correctness was admitted of statements made by police investigating
the scene being Makaiga Ruth, Halimat Sannie and Christian
Akioja
Olakpe together with the latter’s post blast analysis
report.
[12]
The report by
Olakpe is in similar vein to that of Haverty.
[22]
The
correctness is admitted of the witness statement by Olufemi
Hunjenukon, a trained officer in explosives detection, disposal
and
post blast investigation. He was part of the team deployed on 1
October 2010 at Eagle Square as a result of intelligence about
the
likely explosive attack on public facilities during the Independence
Celebrations. Vehicles were disallowed from parking close
to the
venue and at about 11:00 a.m. a loud explosion was heard accompanied
by black fumes attracting many people to such location.
Approximately
ten minutes later another loud explosion was heard which led to
serious pandemonium around the Millennium Park Junction
on Shehu
Shagari Way. It was evident that the perpetrators used two VBIED’s.
The first explosion was used as a hoax to attract
more people towards
the second VBIED which was responsible for all the recorded
casualties. Photographs were taken which indicate
the horrendous
carnage and damage caused by the two explosions.
[13]
[23]
The
correctness is admitted of the contents of the statements by Marc
Segret, the General Manager of Novotel Hotel, Port Harcourt
dated 27
September 2011 and 28 June 2012 together with its attachments.
[14]
These documents indicated that the accused resided at the aforesaid
hotel between 10 – 14 March 2010, 3 – 5 June 2010
and
again from 28 – 30 July 2010. In each instance he paid the
hotel in cash in advance.
[24]
The
correctness is admitted of the statement by Mrs Bridgette Austin, the
operations manager, Green Fields Hotel, Port Harcourt
dated 28 June
2012.
[15]
The documents
indicate that Mr Charles Okah resided at the aforesaid hotel on 14
September 2010 (in two rooms, C2 and A7) and 26
September 2010 (in
one room, A2).
[25]
It is
admitted that Mr Charles Okah opened a bank account with Zenith
International Bank Limited in the name Tombra Life Support
Company
Limited to which he was the sole signatory and the correctness of
bank statements of the account attached thereto.
[16]
[26]
It is
admitted that Intercontinental Bank Limited opened a bank account in
the name of Sangfroid Limited to which the accused was
a signatory
together with the bank statements in respect of the account.
[17]
[27] The correctness is
admitted of the contents of Exhibits “JJJ1”, “JJJ2”
and “JJJ3” being
statements and photograph albums
prepared by Lieutenant Colonel Retief van der Merwe and Warrant
Officer Lebuso and Constable Nkuna
in respect of the accused’s
home and items there seized.
[28]
The
correctness of copies of 3 journals kept by the accused in his own
handwriting was admitted.
[18]
In these journals the accused made notes in from January to September
2010 of names, military cloathing, equipment and hardware.
For
example, he writes:
“
Battle jackets…
boots… boats, rounds… walkies…engines…
balaklavas… water bottles…
tee shirts, caps, belts,
camo(flage) shorts… TNT… backpacks… binoculars
nightvision… badges…
bulletproof vests… tents…
VHF radios … generators… rechargeable lamps…
fuel… ordering
through Ange Dewrance the construction of a
gunboat with protector plates for the gunmen… rifle slings…
the contact
numbers of Military Surplus Stores CC… compasses…
BMG assault weapons… RPG …SAM …grenade
launchers…
mortars… landmines… anti-tank
missiles… shotguns… handguns… notes on military
tactics inter
alia the use of explosives, weaponry and sabotage…
and notes on counter insurgency.. names of his co-militants like
Tompolo,
Stoneface, Boyloaf, Moses, Chima, Raphael, VIP, Stanley…”
[29]
Also
admitted is the fact that an email address and account was registered
with Yahoo with a login name “nigdelunrest”
in the name
of “Mr. Jomo Gbomo”.
[19]
The accused also had an account with Yahoo with the login name of
henryokah and email addresses
henryokah@yahoo.com
and
sangfroid60@yahoo.ca
(in California).
[20]
[30]
The
correctness of the passports issued in the name of Henry Emomotimi
Okah with number A01871823 and A2947735A as well as the conditions

attached to an ECOWAS Travel Certificate and the accused’s
temporary residence permit in South Africa, is admitted.
[21]
According to his travel documents he travelled to Cotonou, Benin on
18 February but did not lawfully cross over into Nigeria during
March
2010 at a recognised port of entry.
[22]
[31]
The
correctness is admitted of a typed document which also contains
handwritten notes by the wife of the accused entitled “Movement

for the Emancipation for the Niger Delta”. This document was
also extracted from the hard drive of the laptop in the accused’s

possession.
[23]
[32] It is admitted that
the document headed “Times of Nigeria” was also found on
the external hard drive of the accused’s
computer. It purports
to be an article dated 15 October 2007 containing a statement from
MEND after the accused was arrested in
Angola in a question and
answer format. It states:
“
Q: Since the
arrest of Henry Okah in Angola, the press is awash with rumours that
Jomo Gbomo and Okah are the same and one person.
Please, clarify.
Ans:   The
organisational structure of MEND is a closely guarded secret. If Jomo
and Henry are the same persons, then I will
not be answering your
questions. The Angolan jails do not have the luxury of wireless
internet services. When Henry is released,
he will be the best
position to admit if he is the elusive Jomo.
Q: Is Okah the leader of
MEND or is it Gbomo or Dokubo-Asari?
Ans:   The leader of
MEND is called Jomo Gbomo.
Q: Who is the official
spokesman of MEND?
Ans:   The official
spokesman is Jomo Gbomo. Any other release from any other e-mail
account claiming to speak for MEND is
fake.”
[24]
[33] It is admitted that
a document headed “The Nigerian Village Square” may be
used in evidence. It purports to be
an article written by Akinseye
Agunloko on 26 September 2007 and states inter alia:
“
Considering that
we do not know Henry Okah (Jomo Gbomo) except from his e-mails to
media houses, we would have to unravel the mystery
man from titbits
from news reports and descriptions from MEND itself. It is
instructive to know that MEND described him as ‘a
silent
partner’.”
[25]
[34] It was admitted that
an article written by Emma Amaize 31 May 2008 concerning Boyloaf and
the accused may be used in evidence.
It states inter alia the
following:
“
He is not just an
activist with solid credentials of being affiliated to the MEND as
the JTF offhandedly assumed, Boyloaf said he,
it was, who designed
the struggle that is, today, known as MEND and that he is the
second-in-command to the seized Henry Okah,
a man he repeatedly
described as his boss and bona fide leader of the MEND.
. . . .
You just called Henry
Okah your boss. Within MEND, there is the confusion about the real
MEND and the fake MEND. Can you shed light
on this matter by telling
us how MEND came about, the forces behind it and the position of Okah
in the scheme of things in the
group?
The truth of the matter
is simple. I told you earlier that we, the IJAW people, are poor and
our betrayal is as a result of the
poverty and because this poverty
has been with us for a long time, when little cash is thrown into the
system, thye can always
betray their brother. When you talk about
Henry Okah, he is the overall boss, the pioneer of MEND, that is the
struggle for the
emancipation of our people, the Niger-Delta
people.”
[26]
[35] It was admitted that
an article headed “Conscience is an open wound: Only truth can
heal it” purported to be an
open letter from Dokubo Asari may
be used in evidence. In this letter Asari refers to the accused “as
an Ijaw man who deals
in arms”. The letter refers to several
occasions where the accused supplied Asari with arms to the tune of
N6.8 million,
N2.5 million and N13.24 million. The letter further
states:
“
Henry Okah, who
was in South Africa for the integrity of our information flow, was
appointed e-mailer in his absence.”
[27]
[36] It was admitted that
an article headed “MEND gives FG conditions for cease fire”
dated 1 December 2007 written
by Bisi Olaniyi may be used in
evidence. This article quotes Boyloaf as having said:
“
We can give a
chance to the new Government (of President Umaru Yar’ Adua).
Our Master, Jomo Gbomo, said we should give peace
a chance, but we
want development in the Niger Delta.”
[28]
[37] It was admitted that
reference may be had to an article in the newspaper K.P. News dated
16 September 2009 where an article
headed “MEND gives 30 days’
grace to Yar’ Adua” was published. The article stated
inter alia:
“
The ceasefire came
shortly after the release of its leader Henry Okah, who had been
jailed for close to two years on charges of
treason and gun-running.
. . . .
The Oil and Gas industry
who will bear the brunt of renewed hostilities should not be deceived
by the amnesty charade or the recent
military hardware purchases as
this is only the leading to another cycle of violence.
On June 25, Yar’
Adua offered the amnesty to all militants who lay down their arms in
the Delta region. The arms were to be
handed over in centres where
the fighters would be registered under a reintegration programme
running from 6 August to 4 October.
. . . .
MEND has not clearly
stated its position as a group, although one of its commanders has
already surrendered some arms.
. . . .
On Monday, it said it was
waiting for directives from Okah on how to proceed after the
expiration of the ceasefire.
. . . .
The violence in the Niger
Delta has brought about a plunge in Nigeria’s crude production
to about 1.7 million barrels a day
compared to 2.6 million in
2006.”
[29]
[38]
It was
admitted that reference may be had to a letter written by the accused
dated 19 May 2010 to the Ambassador of Venezuela wherein
he stated
that he represented the interest of millions of inhabitants in the
Niger Delta and sought an audience with the Venezuelan
Ambassador to
explain himself properly.
[30]
[39] In summary, these
admissions boil down to the following:
a.  The accused was
at all relevant times a supplier of arms and military equipment and
hardware to inter alia MEND.
b.  At the relevant
times during 2010 the accused was the leader of MEND.
c.  The only
reasonable inference to be drawn from the admitted documents is that
the accused was the same person as as Jomo
Gbomo and that he used the
latter as a pseudonym in emails and notifications to the media.
d.  The accused was
in Port Harcourt in the Novotel on 14 March 2010, the day before the
bombing in Warri after having entered
Nigeria unlawfully from Benin.
e.  The bomb blasts
at Warri and Abuja were caused by motorcars laden with dynamite. In
Warri two car bombs were used one of
which was a Mercedes Benz. In
Abuja the two cars used were a Honda and Mazda 626.
f. The bombings at Warri
and Abuja comply with the definition of terrorism and terrorist
activities in the Act.
g.  The bombings
caused mayhem to buildings and cars and killed and injured several
people as set out in the indictment. Timing
devices were found on
site, which were used to set off the bombs at different times. The
delay in the second bomb exploding was
designed to attract people to
the location of the first bombing and thereby to cause maximum injury
and death to those attracted
during the explosion of the second
bombing.
h.  It is also
common cause that MEND accepted responsibility for both terrorism
acts in Warri and Abuja.
i. The people who
attended the gatherings at Warri and Abuja fall within the definition
of “Internationally protected person”
as defined in
section 1 of the Act. The buildings damaged during the bombings fall
within the definition of “State or governmental
facility”
as defined in section 1 of the Act.
INFORMATION TECHNOLOGY
EVIDENCE
[40] The State tendered
the evidence of an Information Technology Expert on two occasions,
namely Captain Charles Maree of the South
African Police Services
attached to the Cyber Crimes Support unit of Crime Intelligence. The
bulk of his evidence related to the
scientific analysis of hundreds
of e-mails allegedly sent by Jomo Gbomo in order to establish that
the IP addresses point to the
sender being the accused. In response
the defence called an IT specialist, Mr Ayodeji Majekodumni to
counter this evidence. During
the course of the evidence of these two
witnesses countless exhibits and documents were handed in. I am of
the view that it is
not necessary to traverse this complicated and
somewhat convoluted evidential dispute for the purpose of this
judgment. There is,
in my view, more than adequate evidence to come
to a definitive finding without reference to such evidence.
THE STATE CASE
[41] A convenient summary
of the State’s case has been set out in the document prepared
by Mr Abrahams in terms of
section 144(3)(a)
of the
Criminal
Procedure Act attached
to the indictment. I shall therefore refer to
it liberally in setting out an overview of the State’s case.
HISTORICAL BACKGROUND
[42] The accused, a
Nigerian national, was a leader of a rebel militant organisation from
the oil-rich Niger Delta region, in the
southern parts of the Federal
Republic of Nigeria. It was an umbrella organisation (“entity”
as described in section
1 of the Act) of various militant groups
known as the “Movement for the Emancipation of the Niger Delta”
(“MEND”).
[43] MEND was
dissatisfied with what it believed to be the Nigerian Federal
Government’s unequal and discriminatory sharing
of oil
revenues, which in its view, had adversely affected the Niger Delta
region and the Nigerian Federal Government’s non-cooperation
in
having the land of the people of the Niger Delta restored to the
people of that region which MEND believed had been unlawfully
taken
from them. As a result MEND had been constant conflict with the
Nigerian Federal Government since 2005.
[44] The nature of the
conflict included armed attacks on the oil industry such as blowing
up the oil pipes and hijacking the executives
of oil companies,
claiming ransom for their return. These attacks adversely affected
the economy of the Federal Republic of Nigeria
as it was proved that
approximately ninety five per cent of the gross national product of
Nigeria emanated from the oil extracted
from the southern region.
[45] The militants
conducted their guerrilla attacks on the oil industry from various
bases in the Delta region from where they
conducted their armed
attacks on motorised riverboats. The area where these bases were
established was known as “the creeks”.
The militants were
well armed and properly clad in camouflage uniforms, MEND badges,
army boots etc.
[46] Dr Goodluck Jonathan
originated from the southern regions of Nigeria. He became first
vice-president and thereafter president
of Nigeria. In a bid to end
attacks on the oil industry his predecessor President Umaru Yar’Adua
initiated an amnesty program
in 2009 which inter alia included the
voluntary surrender of arms and ammunition by armed MEND militants
and other rebel factions
associated with the conflict in the Niger
Delta. One of the conditions in negotiating the amnesty with the
militants was that the
accused as leader of MEND who was in custody
at the time on charges of treason and gun-running, should be
released.
[47] During July 2009 the
accused accepted an offer of amnesty extended to him by the Nigerian
Federal Government for his involvement
in MEND’s previous
criminal activities. In so doing the accused also offered to work
with the Nigerian Federal Government
towards the restoration of peace
in the Niger Delta region.
[48] The accused returned
to South Africa during August 2009, after previously, during 2005
having made the Republic of South Africa
his principal place of
residence. It would appear that the accused became increasingly
dissatisfied with subsequent post amnesty
conditions in the oil-rich
regions of southern Nigeria.
THE WARRI BOMBING ON
15 MARCH 2010 (COUNTS 1, 3, 5, 7, 9 AND 11)
[49] During February 2010
the accused left South Africa and travelled to Nigeria. In Nigeria he
gave N1 200 000 (the Nigerian currency)
to Obi Nwabueze (“Obi”),
a Nigerian national and instructed him to purchase two vehicles. Obi
purchased a Toyota and
a Honda Ballade and took the vehicles to the
residence of Mr Y, also a Nigerian national living in Port Harcourt.
[50] The accused
requested another Nigerian national, Bassey Umoren, to construct
hidden compartments in the two vehicles for which
he paid Umoren N50
000. The accused gave Umoren an additional N20 000 to purchase
materials to be used in the construction of the
hidden compartments.
The construction consisted of welding a metal plate between the boot
and the backseat. Umoren performed this
work at the residence of Mr Y
after which the accused paid Umoren another N50 000 for his services.
[51] The accused gave
N750 000 to Chima Orlu, also a Nigerian national, to purchase
dynamite and detonators. The accused, Mr Y,
Obi, Raphael Damfebo
(also a Nigerian national) and Chima Orlu met at Mr Y’s
residence where the dynamite, detonators and
timing devices were
fitted into the hidden compartments of the two vehicles. The timing
devices were supplied by the accused in
the form of clocks and/or
mobile phones. The accused taught his accomplices how to place a
detonator in a dynamite stick and then
connect the detonator to a
clock or mobile phone and the latter to a battery and the battery
again to the detonator. As such, the
clock or mobile phone broke the
electrical circuit, but as soon as the clock or telephone rang, the
electrical circuit was complete
and the detonator was set off
exploding the first dynamite stick which thereafter ignited all the
other dynamite sticks in the
secret compartments. Normally between
thirty and sixty dynamite sticks were packed into the secret
compartments of the motor vehicles.
[52] On 15 March 2010 and
on the instruction of the accused, Tiemkemfa Francis Oswo (alias
“General Gbokos”) and a person
unknown to the State,
attempted to park two vehicles (one a Mercedes Benz) in the
demarcated parking area of Government House Annex,
Warri, Nigeria
where the Vanguard Newspaper was due to hold a Post Amnesty Dialogue
meeting. However, due to the visible presence
of State security
officials they parked the vehicles in the public road in front of
Government House Annex.
[53] The Minister of the
Niger Delta, the Delta State Governor, the Imo State Governor, the
Edo State Governor and other representatives
and/or State officials
of the Federal Republic of Nigeria were in attendance along with many
other dignitaries and guests.
[54] During the course of
the morning an internet warning was sent by Jomo Gbomo on behalf of
MEND that a bomb will explode in the
vicinity of Government House
Annex. The motor vehicles exploded where they were parked on either
side of the road in front of Government
House Annex.
[55] One person namely
Alex Igbi, a forty five year old adult male, a Nigerian national,
died from injuries sustained as a result
of the explosion. The
persons listed in annexure “A” attached to the indictment
sustained serious bodily injuries as
a result of the explosion. The
vehicles in the immediate vicinity as well as the buildings,
Government House Annex and the International
Unity School, were also
damaged as a result of the explosion.
[56] Thereafter MEND
publically on internet took responsibility for the aforementioned
bombings.
THE ABUJA BOMBINGS ON
1 OCTOBER 2010 (COUNTS 2, 4, 6, 8, 10 AND 12)
[57] During September
2010 the accused and his brother, Charles Okah, gave Obi N2 000 000
to purchase four vehicles. The accused
also gave Chima Orlu N1 640
000 to purchase dynamite and detonators. At the request of Obi,
Bassey Umoren again constructed hidden
compartments in the four
vehicles at the residence of Charles Okah in Lagos, Nigeria. Charles
paid Obi an amount of N50 000 for
the aforesaid services.
[58] Dynamite and
detonators were fitted in constructed hidden compartments of two of
the vehicles namely a Honda and a Mazda 626.
The accused supplied
four timer devices (clocks) that were used in assembling the two
vehicle-borne improvised explosive devices.
[59]
On 1
October 2010 MEND gave an advance warning of its intention to cause
an explosion at the Eagle Square.
[31]
On the instructions of the accused, there was an unsuccessful attempt
to park the vehicles within the Eagle Square precinct
in Abuja where
the Nigerian president, Dr Goodluck Jonathan, foreign dignitaries and
other representatives and/or State officials
of the Federal Republic
of Nigeria were celebrating the Nigerian Federal Republic’s
50th Independence Anniversary. Due to
the visible presence of State
security officials, the vehicles were parked on the main public road
in proximity to Eagle Square
where public vehicles were parked and
persons using public transport were being dropped off to attend the
celebrations.
[60] During the morning
of 1 October 2010 the two motor vehicles exploded. The persons listed
in annexure “B” attached
to the indictment died as a
result of the injuries sustained during the explosion and the persons
listed in annexure “C”
attached to the indictment
sustained serious bodily injuries as a direct result of the
explosion. MEND once again publically took
responsibility for the
aforementioned bombings.
[61]
In the
indictment the State alleged that the accused at all relevant times
conspired with and/or induced and/or incited and/or instigated
and/or
instructed and/or commanded and/or procured Chima Orlu and/or Obi
Nwabueze and/or Charles Okah and/or Tiemkemfa Francis
and/or Segun
Ilori and/or Edmund Ebuwari and/or Bassy Umoren and/or Emmanuel
Alison and/or Raphael Damfebo and/or persons unknown
to the State in
the commission of and/or to commit the aforesaid acts and/or acted
with a common purpose.
[32]
TERRORIST THREATS
(COUNT 13)
[62] On 27 January 2012,
one Peter Timi, ostensibly the European representative of MEND,
forwarded a communiqué to various
persons and entities,
including the South African Nigeria Chamber of Commerce in which MEND
threatened the South African Government
to facilitate the release of
the accused from lawful detention, failing which MEND would disrupt
the business activities of South
African entities in the Federal
Republic of Nigeria and would take South African nationals employed
by such entities, hostage.
[63] On 30 January 2012
whilst in the presence of the investigating officer the accused
directed similar threats as those communicated
by Peter Timi and/or
MEND. In this regard the accused, Peter Timi and/or MEND and/or
persons unknown to the State at all relevant
times acted with a
common purpose to threaten the entities and individuals referred to
above.
THE DEFENCE CASE
[64] The nature of the
defence case amounted to a denial by the accused of being involved in
any of the terrorist activities alleged
by the State. A further
defence was postulated in cross-examination of the State witnesses to
the effect that the Government of
Nigeria in a corrupt fashion
embarked upon a giant conspiracy against the accused in alleging his
involvement in the terrorist
activities. Such a conspiracy was denied
by all State witnesses to whom the proposition was put in
cross-examination. Mr Maunatlala
valiantly attempted on behalf of the
accused to argue the existence of such a conspiracy by a process of
deduction. In my view,
there is no basis for any inferences of a
conspiracy to be drawn from the proven facts as disclosed by the
evidence. In addition,
no facts were placed before this Court by the
defence which constituted any iota of evidence pointing to the
existence of such
a conspiracy against the accused. On the contrary,
many of the State witnesses were the accused’s former
accomplices who
were intimately involved with the actions of the
accused in planning and executing the bombings in Warri and Abuja. At
no stage
did the evidence disclose any agreement or opportunities to
enter into an agreement amongst them to testify collectively against

the accused in a false manner. The opposite is rather more apparent
from their testimony as there seems to be minor differences
between
their respective factual recollections of the actions of the accused.
THE EVIDENCE
Elder Godsay Peter
Orubebe (“Orubebe”)
[65] The historical
setting in Nigeria was well described by this witness who is a
Minister of Niger Delta Affairs in the Cabinet
of the Government of
the Federal Republic of Nigeria under the leadership of the
president, Dr Goodluck Jonathan. Orubebe was appointed
to this
position for purposes of fast tracking the development in the Niger
Delta and to coordinate the activities of all agencies
and
departments involved in the development and security of the Niger
Delta region.
[66] He testified that
the Niger Delta is a wetland area of Nigeria where oil was first
discovered in commercial quantities in 1956/1957.
Oil became the only
source of revenue for the people of Nigeria. Over 95% of the revenue
of Nigeria is derived from such oil extraction.
[67] Over time, the
entire Niger Delta was neglected in terms of development which
resulted in environmental pollution and economic
deprivation of the
peoples living in Niger Delta. The people of the Niger Delta did not
have the opportunity to be involved in
the political affairs of the
region and did not have a say in the revenue derived from the oil
extraction in that region. As a
result the people of the Niger Delta
became aggrieved. The Nigerian Federal Government was then confronted
on the issues of lack
of development concerning the people of that
region. This protest was originally led by Isaac Adaka Boro, followed
by Ken Saro-Wiwa
who peacefully demonstrated the agitation against
the Nigerian Government. The people of the Niger Delta felt that the
Government
had not been pushed far enough in meeting their demands
and inevitably armed struggle commenced against the Government.
[68] When President Yar’
Adua was elected president of Nigeria, he set up a technical
committee, headed by Orubebe to go to
the creeks in the Niger Delta
to persuade militant leaders to lay down their arms and to give peace
an opportunity so that the
Niger Delta could be developed. During
these discussions with all the militant leaders, three critical
conditions were raised by
the militant leaders as a proviso to lay
down their arms. These were:
(a) Firstly, amnesty
should be granted to all the militants at the time;
(b) Secondly, the accused
should be released from prison; and
(c)  Thirdly, the
development in the Niger Delta should be fast tracked.
[69]  The demands of
the militant leaders were conveyed to then President Yar’ Adua.
He found the demands to be acceptable.
The militant leaders also
wanted the then Deputy President of Nigeria (Dr Goodluck Jonathan),
who is the current President, to
come to the creeks and address them.
This was done and the process of amnesty commenced.
[70] As a result, in June
2009 a Presidential Amnesty Proclamation was issued pursuant to
section 157 of the Constitution of the
Federal Republic of Nigeria,
granting amnesty and pardon to all persons who directly or indirectly
participated in the commission
of offences associated with militant
activity in the Niger Delta.
[71] The pardon offered
in the proclamation would only take effect upon the surrender and
handing over of all weapons, arms, ammunition
and equipment, along
with denunciation of militancy in the Niger Delta, which was to be
done in writing by individual militants
and in some cases due to
illiteracy of certain militants, collectively signed on their behalf
by their leaders. The pardon had
also been extended to all persons
who were at the time being prosecuted for alleged offences associated
with militant activity.
[72] The acceptance of
amnesty placed obligations on the Federal Government to take the
former militants and disarm and demobilise
them; take them through
reorientation programmes and train them in various skills so as to
reintegrate them into society; take
concrete steps in taking care of
environmental issues in the Niger Delta; provide immediate jobs to
engage the former militants
and to go ahead with the infrastructure
development of the Niger Delta. Various government institutions were
to take care hereof,
in that, the amnesty was to be supervised by the
Special Advisor to the President on the Niger Delta, Mr Kingsley
Kuku; the Minister
of Petroleum Resources was responsible for the
immediate job creation of youths by building pipelines and oil
facilities; the Minister
of Environmental Affairs was responsible for
the environmental concerns; and structural development in the Delta
was under the
portfolio of the Minister for the Niger Delta Affairs.
[73] At the height of the
Niger Delta crises oil production dropped to seven hundred thousand
barrels a day and has since, after
amnesty, risen to 2.6 million
barrels per day. Over twenty two thousand ex-militants are undergoing
training in various parts of
the world, including South Africa.
Ex-militants are being trained in oil and gas industry, construction,
the maritime industry
and piloting.
[74] By virtue of his
position he has access to all documents and information relevant to
the Niger Delta and to amnesty. Exhibit
“B” is a document
dated 25 June 2009 and entitled “Amnesty Proclamation”
and contains the terms of the
amnesty. Exhibit “C” is a
document entitled “Renunciation of Militancy” which was
signed by many militants
individually. For those militants who could
not read and write their leaders were asked to compile their names
and then signed
on their behalf.
[75] The accused accepted
amnesty. The accused was a key figure in the Niger Delta struggle and
the militants had a lot of respect
for him. The accused’s
release was given as one of the conditions by the former militant
leaders in order for them to accept
amnesty. Exhibit “D”
dated 8 July 2009 is a document signed by the accused and completed
on 8 July 2009 in his own
handwriting in acceptance of amnesty.
[76] Orubebe stated that
the accused is his friend. They first met in 1998/1999 when there was
conflict between two tribal groups
in the Niger Delta. He and the
accused thought it unwise for these two groups to fight and that it
would be better for them to
work as one. At the time he saw the
accused’s philosophy as embracing and good. The accused had an
interest in the people
of the Niger Delta and felt a need for
government to address the issue of development in the Niger Delta.
All the leaders of the
region were talking of this very need at the
time. That is how he and the accused came to like each other, each
other’s ideas,
which included ideas about peace, development,
the environment and economic empowerment of the people of the Niger
Delta. Orubebe
and the accused were house friends and often visited
each other in Warri where he lived and in Lagos, where the accused
lived.
He and the accused are still friends today.
[77] MEND was an umbrella
body consisting of all the various militant groups in the Niger
Delta. The leadership of MEND was chaired
by the accused and
Government Ekpemupolo (aka, “Tompolo”). He knew this
because this was discussed at leadership level
when they met. When
amnesty was granted, Tompolo addressed a press conference which was
publicised all over the national newspapers
of Nigeria, during which
he categorically stated that he and the accused were the leaders of
MEND. “This is a fact and is
not up for debate.”
[78] MEND had a
spokesperson named “Jomo Gbomo”, which was a fictitious
name. The accused and Tompolo were the two main
spokespersons of
MEND.
[79] Orubebe said it is
not good judgment for the accused to deny being a leader of MEND
because the people, including Orubebe himself,
were proud of the
accused at the time. They all loved the accused and worked with him.
The military leaders supported the accused
taking up the leadership
role and the accused was accepted by everybody. “The accused
did a good job at the time.”
[80] After the accused
accepted amnesty he was released from detention and participated in
post amnesty meetings. The accused had
personal meetings with Orubebe
and during one of these meetings the accused enquired whether
government was sincere about its promise
in giving amnesty and in
developing the region. Orubebe advised the accused that the present
could not be a better time as the
Vice President (Dr Goodluck
Jonathan) came from the Niger Delta region. He told the accused that
the President was sincere in both
official and private meetings he
had with the President and Vice President, collectively and
individually about their attitude
towards the development of the
Niger Delta.
[81]
The
Governors of the Edo, Imo and Delta States and other top government
functionaries attended the Post Amnesty Dialogue meeting
at
Government House Annex, Warri on 15 March 2010 as hosted by the
Vanguard Newspaper in their official capacities as representatives
of
government when the bombs exploded.
[33]
[82] Orubebe visited the
accused in South Africa on 18 April 2010 to question him on issues
about renewed violence in the Niger
Delta and to educate the accused
on why it was absolutely necessary for the leaders and elders of the
Niger Delta to work with
government in bringing lasting peace to the
Niger Delta. The discussion concerning the security and development
of the Niger Delta
took place on a friendly and brotherly note
whereby the accused was once again reassured of governments
commitments. He denied
meeting with the accused at the behest of the
Acting President as alleged by the accused during the latter’s
bail application.
[83] There were rumours
in the Nigerian print media that the accused was behind militants
trying to renew attacks on oil facilities.
Orubebe needed to meet
with his brother, the accused, to find out what the problem was and
to reassure him of Government’s
commitment to develop the Niger
Delta. When Orubebe confronted the accused on the aforementioned
allegations the accused responded
by saying he hopes it will be the
way Orubebe had explained to him. The accused did not admit nor deny
the allegations that he
was behind a probable renewed uprising and
instead laughed and asked Orubebe to tell him about the readiness of
Government.
[84]
Orubebe
denied handing the accused a quotation from China Xinshdai Company
dated 3 September 2010 which ex facie related to the
procurement of
arms and had never seen the document before. The Minister of Defence
is responsible for the procurement of arms
and ammunition in
Nigeria.
[34]
[85] Orubebe was present
on 1 October 2010 at Eagle Square, Abuja and participated in the
Nigerian Federal Governments 50
th
Independence Anniversary
celebrations. Many African Heads of States were in attendance
representing their various governments.
Every 1 October Nigerians
sing and celebrate their independence, which is usually one of the
top official activities of the government.
After the ceremony
had started they heard two heavy bangs and then saw fire trucks
driving to the left hand side of Eagle Square,
the official
ceremonial centre for top government activities. Although a
government facility, it is also used for private activities
and is
frequented by government officials and members of the public.
[86] Orubebe confronted
the accused telephonically after the 1 October 2010 bombings as to
whether he was involved and the accused
was not prepared to discuss
it with him telephonically. The accused’s involvement was
public knowledge as it was publicised
in both the Nigerian print and
electronic media. The accused’s failure to deny any involvement
outright leaves room for a
negative inference to be drawn that he was
indeed involved.
[87] Subsequent to
amnesty being granted, a split occurred in the ranks of MEND.
However, after militancy had been renounced, and
the name Jomo Gbomo
was being used, Tompolo came on air and stated in both print and
electronic media that they are no longer using
that name and whoever
is using that name is somebody other than them and it doesn’t
come from MEND.
[88] MEND claimed
responsibility for the 1 October 2010 bombings in Abuja. He called
Tompolo who said MEND was not involved and
anybody using the name
MEND is not them. There was a breakaway faction of MEND which was
armed and linked to the accused. It is
common knowledge in Nigeria
that the accused was involved in a breakaway MEND that is causing
disturbances in the Niger Delta.
There are now two MEND’s, with
which the accused is in agreement. It is totally wrong for the
accused to assert that the
one faction of MEND works with the
government to ensure his downfall. There is no MEND member looking
for the downfall of the accused.
All they are looking for is for
everybody in the Niger Delta to work together for peace and anyone
who is still trying to create
trouble in the Niger Delta is not part
of them. In this regard Orubebe said:
“
COURT
: With
that I have some difficulty and which I am not clear in my own mind
if you can help me.  You say you speak to all militant
leaders
in MEND but you also say they – the leaders of MEND – are
... [indistinct] with others to come to the table
to work with the
government of each development of the Delta region?
MR MAUNATLALA
:
That is right M'Lord.
COURT
: So there is
a faction which is not part of this working together with the
government is that correct?
Yes
M'Lord there is a group.
Yes?
That is still creating some problems in the Niger-Delta and that
group is linked to the accused and that
is why they are now talking
to them.
Yes?
That we are on the way to recovery in our sector of the Niger-Delta
and that everybody should come together
to work together, they are
still talking to everybody.”
[89] Under
cross-examination Orubebe further said that the purpose of his
evidence was to talk about how he came to know about the
accused and
other militants’ efforts, officially and privately; what
government has done to address the problems of the Niger
Delta and to
portray to the world that there would be no basis for any further
protest considering Government’s efforts to
address the
longstanding problems of the Niger Delta.
[90] Under re-examination
Orubebe inter alia confirmed the following: That he had more than
three mobile telephone numbers for the
accused.
[91] Orubebe made a very
good impression as an impartial and objective witness. He bore the
accused no malice and confirmed several
times that he still regarded
the accused as his friend. Pertinently he stated that the Government
of Nigeria would be happy to
receive the accused back to work with
them should he repent “because he is still a friend, a
brother.” I see no reason
whatsoever to disbelieve this
witness. In my view, he gave a very clear and comprehensive exposé
of the historical past
and the present situation of development
taking place in the southern regions of Nigeria. From his evidence it
can be conclusively
concluded that there is no reason to rebel or
protest against the Nigerian Government’s conduct in the Niger
Delta. For those
who accepted amnesty in 2009, the necessity for
rebelling against the Government has on this evidence completely
dissipated. There
is, however, clear evidence to the effect that
there is a remaining faction of MEND of which the accused forms part
rebelling against
the Nigerian Government.
Mr
X
[35]
[92] The main witnesses
for the State were the accused’s two principal accomplices in
planning and executing the bombings
in Warri and Abuja. The state was
granted an application to retain the anonimity of these witnesses for
fear of reprisal by those
who are still loyal to the accused. The
application was also granted as these two witnesses were expected to
testify in the trials
of other accused currently charged in Nigeria
with similar offences arising from the same two bombings in Warri and
Abuja. Their
identities were, however, verified by myself upon
checking exhibits of their respective statements.
[93] Mr X first became
aware of the accused in 2006 – 2007 through Selekaye Victor Ben
(‘Sele’), who worked for
the accused at the time. He
accompanied Sele to the market where the latter bought clocks, Nokia
3310 mobile telephone handsets,
wires and other materials for use in
the construction of car bombs. Sele use to refer to the accused as
being the “General
Master”.
[94]
He got to
know more of the accused through Stanley
[36]
,
who worked for the accused as his personal assistant. During
2006/2007, he accompanied Stanley to the Chessbar restaurant, GRA,

Port Harcourt where he met Chima Orlu for the first time. Stanley
handed N300 000 to Chima. The money came from the accused.
[95] He then informed
Stanley of residential rental problems he was experiencing. Stanley
informed the accused of this witness’s
problems. As a result,
about a week later, the accused gave Mr X N250 000 through Stanley.
[96] He remained in
telephonic contact with the accused whilst he was in Nigeria and the
accused in South Africa. During February/March
2010, and in one of
the telephonic conversations the accused discussed the proposed Warri
bomb blast with him and told him that
he was coming to Nigeria.
However, before coming to Nigeria the accused sent money for him and
one “Gbokos” to do a
reconnaissance of the venue where
the Post Amnesty Dialogue meeting was to take place. The Post Amnesty
Dialogue meeting was initially
supposed to have taken place at the
Wellington Hotel, Warri on 15 March 2010.  The accused deposited
N200 000 into the witness’s
bank account for reconnaissance.
The witness and Gbokos went to the venue and informed the accused who
instructed the witness to
look for a position to park the cars where
maximum damage could be caused.
[97]
The accused
arrived in Nigeria around 11 or 12 March 2010
[37]
and called him and requested him to meet him at the Novotel Hotel,
Port Harcourt. He later met the accused in his hotel room, where
they
discussed the Warri bombings. Obi Nwabueze
[38]
arrived whilst he was there. It was his first time to meet Obi. The
accused opened a safe in his hotel room, took out about N1,
2 million
and handed it to Obi and instructed Obi to buy two cars. Obi then
left the room. Whilst in the hotel room, the accused
said that he was
placing Mr X in charge of the Warri bomb blast and that Mr X would be
responsible should anything go wrong.
[98] The accused called
him the following day and directed him to assist Obi to buy cars in
Port Harcourt. The accused provided
him with Obi’s mobile
telephone number. He met Obi and Chima in Airport Road, Port
Harcourt. Obi had already purchased a
Toyota passenger vehicle. There
were four motor vehicle batteries and wires in this vehicle. These
items were to be used in the
assembly of the dynamite and timers for
the bombs. Obi gave him N600 000 to buy another car. The next day Mr
X and Mr Y bought
a Honda Bullet passenger vehicle and thereafter
went to the State Secretariat to register the vehicles. Mr X and Y
used fictitious
names to register the vehicles. The witness was also
instructed by the accused to obtain plastic number plates for the
vehicles
so that the origin of the vehicles is not traced back to him
after it had exploded. The vehicles were then taken to Mr Y’s

compound.
[99] The accused had
directed Obi and Chima to buy a welding machine, iron plates, a rug,
dynamite, batteries and wires. Obi and
Chima returned with Bassey
Umoren who constructed the hidden compartments in the boots of the
vehicles. The witness fetched the
accused from his hotel and took him
to Mr Y’s residence. The accused directed Chima to buy more
dynamite and gave him money.
The accused assembled black timers and
wires and requested Mr X, Mr Y and Obi to peel the wires for the
assembly in Mr Y’s
room. The accused collapsed as a result of
the fumes from a generator they were using for the welding. The
witness, with the assistance
of Mr Y carried the accused to the
vehicle and took him back to his hotel room. The accused claimed to
have a medical condition
(heart) and explained that he had not taken
his medication that day.
[100] The next day the
witness fetched the accused from his hotel and took him to Mr Y’s
residence where the accused continued
with the assembly of the
dynamite and tested the timer to ensure it is safe. The witness then
took the accused back to his hotel
room where the accused gave the
witness N150 000 to use for fuel and accommodation costs and reminded
the witness that he was in
charge of the operation. The accused also
informed the witness that the venue for the Post Amnesty Dialogue
meeting had changed
to Government House, Annex, Warri and that he had
forwarded his invitation to Gbokos. Obi and Chima packed the dynamite
and timers
into the hidden compartment of each vehicle. The next day,
14 March 2010, the accused informed the witness that he was leaving
for Lagos and thereafter for South Africa.
[101] On the Monday, 15
March, the witness and Mr Y drove in Gbokos’ Mercedes Benz
following Gbokos, who, with his girlfriend
drove the Honda vehicle.
The other two persons drove the Toyota to Warri where it and the
Honda vehicles were parked at a workshop
where Gbokos had directed
them. Gbokos also pointed out to the witness and Mr Y, Government
House, Annex along NPA Express road.
[102] During the morning
of 15 March 2010 they had a look at the venue and observed that
security officials were already present.
They returned to the
vehicles and the witness called the accused and informed the accused
of the presence of a Nursery School next
to the venue. The accused
nevertheless insisted that the vehicles must be positioned inside the
venue. The accused said it is an
order that the vehicles must be
parked inside the venue. Due to the tight security the vehicles could
not be parked inside the
venue and as a result, the Honda and Toyota
vehicles were parked on the left and right hand side of the
Expressway. The witness
and Mr Y set the timers so that the bombs can
explode 10 minutes after each other. The vehicles were also parked
close to the entrance
to Government House Annex.
[103] The explosion took
place whilst the witness was still in Warri. Whilst on his way to
Port Harcourt after the explosion, the
accused called the witness.
The accused was angry and expressed his dissatisfaction because the
vehicles were not parked as he
had ordered. The witness informed the
accused that the purpose of the bombs was to disrupt the meeting and
had the vehicles been
parked inside the venue, people would have
died. The accused phoned back later that day and now seemed happier
as the meeting was
in fact disrupted and did not go ahead. The
accused gave him N200 000 after the bombing to assist him towards the
payment of his
dowry.
[104] The accused
informed the witness that the timers used in the construction of the
bombs were brought by him from South Africa.
The accused also
cautioned that if the security agents see the timers they would be
able to trace them back to South Africa where
he had bought them.
The timers looked like microwave timers. The accused had shown him
and Mr Y how to set the timers. When
they took the vehicles to Warri,
all that had to be done was for them to plug the battery cap head
with the wire attached onto
the iron head of the battery. This was
done by him and Mr Y after they had parked the vehicles.
[105] The witness and the
accused were in continuous telephonic contact between 15 March 2010
and 1 October 2010. During September
2010 the accused telephonically
informed the witness of his plans to bomb Eagle Square on 1 October
2010. As a result, the witness
called Stanley and requested him to
inform the Governor of Bayelsa State of the accused’s plans.
The witness also informed
Sele of the accused’s intentions.
Sele took him to a meeting with Boyloaf, and he then also informed
Boyloaf of the accused’s
plans. Edmund Ebiware also confirmed
to the witness that he was aware of the accused’s plans. The
witness had also established
confirmation of the accused’s
plans through Mr Y.
[106] During September
the accused called the witness and asked him to drive vehicles from
Lagos to Port Harcourt and informed him
that the vehicles would be
containing bullet proof vests and camouflaged uniforms. In addition,
the accused asked him to obtain
prices on military boots to accompany
the uniforms he would be sending in the vehicles. The witness did not
want to get involved
and informed the accused that he was with his
family in Benin City. The witness was also afraid that he might be
stopped by Nigerian
Police authorities and as a result he informed
the accused that he would get someone to assist the accused. When the
accused phoned
back later that day, the witness informed him that the
persons would assist on condition they are paid N30 000 each. The
witness
suggested the accused calls Chima and request him to do it.
The accused did not call him again. The accused was upset and dropped

the call.
[107] Mr Y gave the
witness information about the Abuja bombings. The witness told him
not to get involved and to change his telephone
number. The witness
thereafter deleted the accused’s telephone number from his
phone.
[108] On 1 October 2010,
the witness was informed by Mr Y that the bombs will explode between
9:00 and 10:00 at Eagle Square. Mr
Y had also informed him that the
accused had been arrested the previous day but had subsequently been
released. The witness immediately
called Stanley and informed him
that the explosive laden vehicles were now in Abuja so that he could
pass the information on to
the Governor of Bayelsa State. The
witness, at Stanley’s request, provided him with the accused’s
telephone numbers
which he obtained from Mr Y via text message, to
pass them on to the Governor of Bayelsa State, Timipre Sylva. The
witness had
sent two telephone numbers. The one ended in 333. The
witness did not know the other number.
[109] The witness called
the accused who did not answer his calls. The accused phoned back
almost immediately and told him that
his telephone lines are bugged
and that he would get back to the witness, but he never did. The
witness called Stanley to establish
whether he managed to inform the
Governor. Stanley said that the Governor was also at an Independence
Celebration and that it was
extremely noisy and as a result they
could not hear each other.
[110] Whilst at a
mechanic in Abuja on 1 October 2010 an unknown lady ran in shouting
that a bomb had exploded in Eagle Square.
The witness was angry and
immediately called Sele to inform him about it. Whilst still at the
mechanic, the witness heard the explosion
of the second bomb. Edmund
Ebiware arrived at the mechanic’s workshop. The witness angrily
confronted him about what the
accused had done. Ebiware responded
that it was a good thing as some people are benefitting from the
amnesty programme, whilst
others are not.
[111] The witness was
arrested on 3 October 2010 for the Abuja bombings after Ebiware led
the State Security officials to him at
the hotel where he was staying
in Abuja. The witness immediately informed the authorities that he
was not involved and that the
accused was responsible for the
bombings at Eagle Square.
[112] The witness
confirmed the contents of an SMS dated 10 February 2010 to the
accused in which he texted his name and bank account
details and
explained that it was for the payment of money by the accused to do
the reconnaissance in Warri for the bombings of
15 March 2010. The
witness also referred to the accused as “Boss” in a text
message dated 11 February 2010.
[113] Under
cross-examination Mr X inter alia testified to the following:
1.  He confirmed his
involvement in the bombings in Warri on 15 March 2010.
2.  He confirmed
that he voluntary had made six statements under caution after having
been interrogated by different Nigerian
State Security officials who
requested him to make statements after being interrogated. He
confirmed that he had not been told
by anyone what to say and had
written the statements in his own handwriting.
3.  His statement,
Exhibit “GGG3”, related to the Warri bombings and was
written by him after he had been arrested.
He was fearful, felt under
pressure and confused about the dates of the bombings at the time.
4.  He confirmed
that he was there when Bassey constructed the hidden compartments in
the boots of the vehicles and when the
batteries, timers and dynamite
were positioned in the vehicles, as instructed by the accused.
5.  He again
confirmed the accused collapsed on Saturday, 13 March 2010 and that
the accused returned to Mr Y’s residence
the next day, 14 March
2010. He confirmed that the vehicles were taken to Warri on Sunday,
14 March 2010.
[114] The
cross-examination of Mr X was exhaustive, repetitive and
inconsequential. It related to peripheral matters only distantly

related to the Warri bombings. As to the witness’ evidence on
the preparation and execution of the Warri bombings, his evidence
was
not undermined in any material manner.
Mr Y
[39]
[115] Mr Y is also to be
regarded as an accomplice of the accused. He met the accused through
Mr X. He was aware that Mr X had met
with the accused at the Novotel
Hotel in Port Harcourt. On 13 March 2010, he accompanied Mr X to buy
a dark blue Honda passenger
vehicle. He negotiated the price for the
vehicle which they bought for N550 600. The vehicle was bought at the
instance of the
accused. They went to the Registration Office in Port
Harcourt where they used fictitious names in registering the
vehicles. At
Mr X’s request, Chima Orlu drove the vehicle to
his residence the same day. That was the first time he met Chima.
[116] At his house that
day, he also met Obi Nwabueze, Bassey Umoren and Segun Ilori for the
first time. Chima brought dynamite
and Obi brought four car batteries
and refrigerator or microwave timers. Mr X then brought the accused
to his residence, whom he
met for the first time.
[117] The accused was
very persuasive and charismatic and spoke a lot about politics and
issues concerning the Niger Delta Region
and the amnesty programme.
In this regard, the accused was not satisfied with the way the
government was running the amnesty programme
and he was of the view
that it was not going according to plan. He also complained that
people in the region were describing him
as a “paper tiger”
and he wanted to prove a point that he was very much around and still
to be reckoned with. The accused
was of the view that the President
was not in charge and people were using him to meet their own selfish
needs. At the time there
was a post-amnesty programme in the Delta
State which he wanted to disrupt to prove his point.
[118] While he and the
accused were talking, the other persons brought the items mentioned
earlier into his master bedroom. There
were several bags of dynamite,
each bag consisting of thirty to forty dynamite sticks. The accused
showed them how to assemble
improvised explosive devices.  Among
other things, he told them how to peel the cables and how to do the
wiring. The accused
is the person who taught them how to couple the
copper wire and attach the wire to the cap and to stick it into the
dynamite and
connect it to the timer (clock). Mr Y, Chima and Obi
assembled all the dynamite sticks with copper wire and caps attached
thereto
into the hidden compartments of the two vehicles which were
to be driven to Warri where the post-amnesty dialogue meeting was
supposed
to take place.
[119] While still at Mr
Y’s residence, the accused slumped due to the fumes of the
generator which was on. The accused later
explained that he had not
eaten all day and that he had a health condition. Mr X and Mr Y
assisted him to Mr X’s vehicle,
who then drove the accused back
to his hotel. At the time, Bassey was busy constructing false
compartments in the Honda and Toyota
vehicles. The compartments were
constructed between the back seat and the boot with the use of an
aluminium sheet which separated
the rear seat from the boot. This is
where the car batteries and the dynamite were loaded into.
[120] Mr Y and Chima then
tested to see if the improvised explosive devices would work. They
dug a hole in the ground and buried
the cap therein. They adjusted
the timer to five minutes and after the time elapsed, they heard a
bang. Prior to the accused showing
him how to assemble improvised
explosive devices, he had no knowledge thereof.
[121] Mr X was the person
who called him and who called Gbokos to drive the vehicles to Warri.
On 14 March 2010, Gbokos arrived
there with two adult males and he
and the other two persons then drove the bomb-laden vehicles to
Warri. It was the first time
that he met Gbokos. Mr X and Mr Y
followed the two bomb-laden vehicles in Gbokos’ Mercedes Benz.
When they arrived in Warri,
the cars were parked at Gbokos’
mechanic’s workshop. As instructed by the accused, plastic
number plates were provided,
because it would melt after the
explosion.
[122] The post-amnesty
meeting was initially supposed to be held at the Wellington Hotel.
While in the presence of Mr X and
Gbokos, the accused phoned and
informed them that the venue had been moved to Government House
Annex, Warri and the meeting was
strictly by invitation. The accused
had sent his invitation letter to Gbokos. Messrs X, Y and Gbokos
retrieved the invitation.
[123] On the morning of
15 March 2010, they went back to observe the venue and saw there was
a tent covering where the meeting was
to take place, as well as a
primary school located next door to the premises. The accused
instructed that the cars be parked inside
the yard of the premises.
They argued amongst themselves that it was not wise to park the cars
inside the yard considering what
the casualty outcome would be. Mr Y
said he could not live with himself had the vehicles been parked
there. A decision was then
made to park the vehicles outside in
proximity to the venue. Gbokos and his boys parked the vehicles on
the road in front of the
venue. The accused had taught Mr X and Mr Y
how to set the timers and after setting same, they left town. The
bombing was all over
the news later that day.
[124] Mr X gave the
accused Mr Y’s mobile telephone number. As a result, the
accused and Mr Y were in constant communication
thereafter right up
until the Abuja bombings on 1 October 2010. At some point after the
Warri bombings, the accused called Mr Y
and enquired from him where
he could store items. Mr Y suggested that the accused could use his
residence in Port Harcourt. At
the time Mr Y did not know what items
the accused wanted to store at his residence. The accused informed
him that Segun Ilori (Stoneface)
would arrive at his residence with
the items. Before he even arrived at his residence, Segun was waiting
there in an Isuzu Jeep.
To his surprise, when Segun opened the boot
of the Jeep, he observed a false bottom big enough for a human being
to fit in, which
contained AK47 rifles, grenades and bullets, which
Segun stored in his residence. From that point on, his residence
became an operational
base for the accused and he cannot count the
amount of times weapons passed through his residence.
[125] The persons who
brought arms to his residence at the instructions of the accused were
Segun Ilori and a person from Abia.
Segun used to convey the same
arms to militants in the Creeks. Mr Y’s function was merely to
store the items and make sure
everything is coordinated to plan. He
described himself as being the “enforcer”. This he did on
the instructions of
the accused.
[126] Segun also used to
store military camouflage, boots and an array of military items at
his residence, which he brought from
Lagos. Whenever items arrived at
his residence, Mr Y would advise the accused thereof.  Segun
used to deliver these military
items to the creeks as well. On one
occasion, the accused called Mr Y and informed him that his brother,
Charles Okah, would be
sending items from Lagos through ABC Transport
and directed him to collect the items. Mr Y gave the accused his
brother’s
name so it could be sent to him. This name, Nimi
Allison, was sent to Charles Okah. He had difficulty in retrieving
the items from
ABC and contacted Charles Okah, who gave him the name
of one of his employees, namely Friday Kufre, which resulted in him
collecting
the items that included army uniforms, tents, hoods and
masks. Segun also brought MEND logo badges on arm bands from Lagos,
which
items were also taken to the creeks on behalf of the accused.
[127] The accused
provided Mr Y with a mobile telephone number for them to communicate
with each other. Mr Y was made to feel very
special and important,
because he believed this number was obtained especially for him.
Because they were in constant communication
thereafter, the accused
cut Mr X off.  Mr X even complained to Mr Y about this. The
numbers that the accused used were 0737031170
and 0782495333. Mr Y’s
telephone number was 08160506011.
[128] Mr Y was involved
in the 1 October 2010 bombing in Abuja. In September 2010, the
accused called him and informed him that
he wanted to embarrass the
then acting President, Dr Goodluck Jonathan during the 50th
Independence Anniversary Celebrations, because
at the time the
Federal Government had budgeted N6 billion for the celebration. The
accused was of the view that money could have
been used better in the
Niger Delta Region to empower his people.
[129]
At the time
the accused also told him that he had called Obi Nwabueze, whom he
directed to buy four cars. The accused had also given
Chima money to
buy dynamite. The accused also said that he intended sending the
timers from South Africa, which he duly did. The
accused hereafter
called Mr Y and informed him that his brother, Charles Okah, was
coming to Port Harcourt and requested him to
assist Charles in every
possible way. Mr Y and Charles were in communication with each other
thereafter and met at the Greenfield
Hotel in Port Harcourt.
[40]
During this meeting, Charles handed him a box which came from the
accused. Upon opening the box, Mr Y observed the box contained
night
vision goggles, Walkie Talkies (communication gadgets) and timers
that looked like a microwave switch. Mr Y handed all these
items to
Segun back at his residence in Port Harcourt. At that point, Segun,
Chima, Obi and Mr Y had gathered at the latter’s
residence in
Port Harcourt.
[130] Mr X advised Mr Y
that the accused is self-centred and a chop-alone man. The accused’s
initial idea was for Mr X and
Mr Y to drive the cars from Port
Harcourt to Abuja for the bomb blast on 1 October 2010. Three days
before the incident, the accused
called Mr Y and informed him that he
no longer needs to travel to Abuja as the people in Abuja are already
aware that he, the accused,
is sending people.
[131] During September
2010, Obi brought two cars to Mr Y’s residence even though he
had been informed that four cars would
be coming. Obi drove the one
vehicle to Mr Y’s residence and he had contracted somebody from
Lagos to drive the other vehicle
to Port Harcourt. When the cars
arrived at Mr Y’s compound, there was military attire packed in
the hidden constructed compartments
in the vehicles. The compartments
were once again between the back seat and the boot of the vehicle.
When the vehicles arrived
at Mr Y’s residence, the hidden
compartments had already been constructed and he did not know who had
constructed them. The
military attire was offloaded and stored in Mr
Y’s residence. Segun later delivered the military attire to the
creeks. Chima
had bought the dynamite and the caps and was busy
assembling the dynamite with the assistance of Obi, who was the
coordinator for
this particular event. After the dynamite was
assembled, Obi and Chima loaded the items into the hidden
compartments in the two
vehicles. There was a third person with them
whose name Mr Y could not remember.
[132] After the cars had
been moved to Abuja, the timers were left behind in Mr Y’s
master bedroom in Port Harcourt. The accused
was very angry with Obi
and Chima. This resulted in Chima having to come back to Port
Harcourt to collect the timers. On 30 September
2010, the accused
informed Mr Y that his lines were bugged and that he would revert to
him. It was all over the news that the accused
had been arrested
earlier that day, but was subsequently released.
[133] Mr Y had advised
the accused that he should re-strategize by stopping with his
actions, as everybody is already aware that
he would be responsible
for the bombing. It was on the Internet that MEND was going to strike
on 1 October 2010 and all fingers
were pointing to the accused,
because all the other militants had embraced amnesty. The accused did
not heed Mr Y’s advice.
[134] On 1 October 2010,
Mr Y was in contact with everybody that was involved in the bombing,
namely Obi, Chima and Segun, to make
sure everything went according
to plan. That morning he established from Obi that he had delivered
three cars and he was on his
way back from Abuja. Mr Y accepted that
Obi had been part of the people who had been responsible for the
parking of the vehicles.
Mr Y gave Mr X the accused’s
telephone numbers and informed him that the explosives were to be
detonated at about 09h30 to
10h00. Mr Y was in communication with the
accused via three text messages on 1 October 2010, the first at
10:58:59, the second
at 13:13:01 and the third at 13:29:59, in which
messages he informed him that everything had gone according to plan.
The messages
were sent from 2348160506011 to number 00927737031170.
[135] Mr Y recognised the
arm bands with the MEND logo thereon as part of the items that Segun
had brought to his residence as depicted
in photograph 2 of Exhibit
“VV1”. He also identified the communication gadgets,
binoculars and the protective vests
as depicted in photograph 5 of
Exhibit “VV1” as items that came to his residence. These
were items he received from
Charles Okah during their meeting at the
Greenfields Hotel in Port Harcourt. He identified all the items
depicted in photograph
1 of Exhibit “VV1” as identical
items that came to his residence for onward dispatch to the creeks.
[136] He identified a
deposit of N200 000 into his bank account on
25 June 2010 from
Ben Gold as having come from the accused, as he recalled that he had
sent his account number to the accused. He
also identified a
withdrawal of N500 000 from his bank account on 27 September 2010 as
the money that he handed over to VIP at
the instructions of the
accused on the premise that the accused would later refund him, which
never occurred.
[137]
The items
depicted on photographs 33, 35 to 39, 48 to 59, 64, 65, 67, 69, 71 of
Exhibit “JJJ”
[41]
were identified by Mr Y as items that Segun Ilori had brought to his
residence in Port Harcourt.
[138] Mr Y identified
photograph 15 of Exhibit “JJJ2” as items that were used
to cut the wires, when assembling the
explosives. According to him he
still had similar items in a black bag to the ones used during the
preparations for the Warri bombings.
The black bag was brought to the
accused the first day the accused came to his residence. He also
identified the electrical connections
in photographs 19 and 20 of the
same exhibit. According to him, the soldering iron depicted in
photograph 24 and the cutters depicted
in photographs 25 and 26 and
the items in photograph 29 were all similar to items contained in the
black bag the accused brought
to his residence. In fact, all the
items identified by Mr Y in the photographs contained in Exhibit
“JJJ2” were items
of which similar ones were contained in
the black bag the accused had brought to his residence.
[139] All the military
items reflected in Exhibit “JJJ3” were identified by Mr Y
as similar items to those which were
brought to his residence by
Segun Ilori. In photograph 115 of Exhibit “JJJ3”, he
identified a high power torch light
as similar item to that received
from Charles Okah during their meeting in September 2010.
[140] According to Mr Y,
Obi cannot deny his involvement in the October 2010 bombings. Obi was
the one who bought the cars used
in the bombing. He also drove the
cars to Abuja and was the coordinator of the activities. If Obi
denies any involvement he would
be lying.
[141] When Mr Y met the
accused for the first time at his residence, he was afraid of the
accused because of his reputation and
as a result, could not stop him
when the preparations for the Warri bombings began. During their
discussion that day, the accused
told him how he had killed a
person’s family in Abuja who had run away with his money. Prior
to the accused coming to his
residence, Mr X had informed Mr Y that
the accused had a small job for him to do, but his place was not
safe. As a result, Mr Y’s
house was ideal, because it was
situated in an isolated place in a newly developed area in Port
Harcourt. Mr Y participated in
the 1 October 2010 bombings, because
he was already in the thick of things and was too afraid of the
accused to opt out.
EVALUATION
[142] The evidence of
these three witnesses for the State is, in my view, conclusive of the
accused’s guilt on charges 1 to
12. The evidence of the two
main accomplices is congruent and corroborates one another. There are
no contradictions or discrepancies
which may negatively affect their
testimony. It is trite law that an accused may be found guilty on the
evidence of accomplices.
[143] The evidence of
these witnesses overwhelmingly established that the accused was the
planner, funder, supplier, instructor,
expert and leader in the
execution of the bombings in Warri and Abuja. Although he was not
present at the moment the car bombs
exploded, it cannot be gain said
that they exploded at his instance and direction. To my mind that
makes him guilty beyond all
reasonable doubt of the charges in counts
1 to 12 as the main perpetrator.
[144] I shall deal with
the remaining witnesses in a rather cursory manner because they
mostly confirm the evidence of the two main
witnesses and only add
minor details.
REMAINING WITNESSES
Chima
Orlu (“Chima”)
[145] The next 3
witnesses are Chima Orlu, Segun Ilori and Bassey Umoren. They were
also involved in the planning of the bombings
in that they assisted
in obtaining the necessary materials for the assembly of the car
bombs. They confirm and corroborate the
evidence of Mr X and Mr Y.
[146] Chima met the
accused through his late relative, Dakro Princewell, in 2006. Dakro
used to refer to the accused as “Grand
Master”. The
accused knew that he was going around with Dakro and as a result,
deliberately made contact with him so that
he could assist him to buy
dynamite.
[147] Dakro took the
witness to two different places in Port Harcourt from which they
bought a large quantity of dynamite which
was stored at the same
premises as the eleven vehicles.
[148] Dakro died in early
February 2007. In March 2007, the accused called Orlu and during
their telephonic discussion, he promised
to buy Chima a car. Not long
thereafter, Chima met Stanley and Mr X at Chessbar Restaurant, GRA,
Port Harcourt, where Stanley handed
over N300 000 to Chima which came
from the accused to assist him in the purchase of a vehicle.
[149] Later in 2007, the
witness met the accused at the Gateway Hotel in Port Harcourt. This
was the first time that he and the
accused met one another in person.
[150] Before the arrest
of the accused in Angola in 2007, Chima, at the instance of the
accused, met with Bassey Umoren and Segun
Ilori (“Stoneface”)
at the premises in Port Harcourt where the dynamite had previously
been stored by him and Dakro.
He saw how Bassey Umoren constructed
hidden compartments between the boots and the back seats of some of
the vehicles, while Segun
assisted a person named “Sakkie”
to run wires from the engine of the vehicles to the constructed
hidden compartments.
According to Chima, such compartments were
constructed in five vehicles.
[151] When he returned to
the premises the next day, Segun, Bassey Umoren and Sakkie were
nowhere to be seen. On the Monday, he
established through the print
media that the accused had been arrested in Angola. It was the first
time that he established the
accused‘s true identity and that
he was the leader of MEND.
[152] Around February
2010, the accused contacted him. The accused enquired from him if he
still remembered where he and Dakro had
bought the dynamite. After
locating the place, he called the accused and confirmed the existence
thereof. The accused requested
him to send his bank account number
which he sent to the accused via a text message. The accused
subsequently paid N700 000 into
his account. Of this money, he used
N400 000 to buy dynamite and retained the balance for himself.
(Later, he said that he bought
the first batch of dynamite in March
and not in February.)
[153] After informing the
accused that he had bought the dynamite, the accused informed him
that Obi Nwabueze would call him. Towards
the evening of the same
day, Obi called him and directed him to meet him at Port Harcourt. He
met with Obi the very next day. This
was the first time they met. Obi
took him to Mr Y’s residence in Port Harcourt, where he stored
the dynamite after being
shown by Obi where to pack it.
[154] The next day, he
went to Mr Y’s residence after being directed by Obi to do so,
where he met Bassey Umoren. There were
two cars, namely a black Honda
Bullet and a green Toyota Corolla, parked in the property. He
accompanied Bassey to rent a welding
machine and upon their return,
Bassey started constructing the secret steel compartments between the
back seats and the boots of
the vehicles as he had seen it previously
done.
[155] After Bassey
completed the construction of the compartments in the vehicles, they
left and returned the following day. Whilst
there, Mr Y arrived at
his residence. It was the first time that he met Mr Y. Not too long
thereafter, Mr X arrived in a Honda
Baby Boy vehicle with Obi and the
accused. The accused and Messrs X, Y and Obi went into Mr Y’s
residence.
[156] The accused then
instructed Chima to buy more dynamite and gave him N50 000. Chima
looked into Mr Y’s bedroom and saw
some of the dynamite, wires,
pins, electrical working material, meter testers and pliers lying
scattered on the floor in the room.
When he returned, there was
nobody there and he decided to leave the dynamite in the bush.
He returned later that evening
at the request of Obi and Mr X. After
his arrival, he carried a motor battery into Mr Y’s residence
and also fetched some
of the dynamite, which was tested. He was
thereafter instructed by Obi to load the dynamite into his vehicle.
The dynamite had
wires attached to it. He and Mr Y assisted Obi to
put the pins into the dynamite. He, Obi and Mr Y thereafter packed
the dynamite
with the pins into the hidden compartments of the two
vehicles which Bassey had constructed.
[157] The next day, which
was 15 March 2010, he phoned Mr X, who informed him that he had left
town. He thereafter called Mr Y,
who also informed him that he had
travelled back to Yenegoa where he works. He simultaneously
established from Mr Y that there
had been an explosion. He later
heard on the news that there was a bomb explosion in Warri, Delta
State, where the amnesty meeting
had taken place.
[158] The accused called
him during June 2010 and once again enquired whether the people, from
whom he had previously bought dynamite,
are still selling it. He
first confirmed that this was indeed still the position and reverted
to the accused. At the request of
the accused, he again sent his bank
account number to the accused via text message. The accused paid N500
000 into his bank account
and deposited a further N500 000 two days
later. Chima bought dynamite to the value of N650 000 and stored it
at Mr Y’s residence
on the instruction of Obi.
[159] During August 2010,
the accused called him again and requested his account number, which
he sent to the accused. The accused
subsequently deposited N1 million
into Chima’s account and instructed him to buy more dynamite,
which Chima did and stored
it at Mr Y’s residence. He used N630
000 to buy the dynamite.
[160] When Chima bought
the dynamite in June 2010, Segun came to Mr Y’s residence with
an Isuzu Jeep and loaded the dynamite
into the vehicle and drove away
with it. He did not know where Segun had taken the dynamite. The
Isuzu Jeep also had a hidden compartment
constructed where the spare
tyre is usually kept. The dynamite which Chima had bought during
August 2010 and had stored at Mr Y’s
residence was once again
loaded by Segun into his Jeep, which he removed from Mr Y’s
premises. During this time, there were
three vehicles parked in Mr
Y’s yard, which had hidden compartments constructed in them and
from which army uniforms, bullet-proof
caps and shoes were removed.
Segun also loaded these items into the Jeep before he left while the
three cars remained parked in
the premises.
[161] The next day, he
received a call from Obi, who requested him to meet him at Mr Y’s
residence, which he duly did. At
the direction of Obi, he took out
all the remaining dynamite, opened them one-by-one and inserted pins
into the dynamite. Thereafter
he assisted Obi to load the dynamite
and batteries into the hidden compartments of the remaining three
vehicles. Each vehicle was
packed with approximately 60 dynamite
sticks and two car batteries.  This took place towards the end
of September 2010 after
which Chima returned to his village.
[162] On the last
Wednesday in September 2010, Chima received a call from Obi who
requested him to bring four clocks, which he had
forgotten at Mr Y’s
residence, to him in Abuja, which Chima duly did. The clocks were
small with a square body and a round
face.  See Exhibit “YY”.
[163] He arrived in Abuja
on 30 September 2010, where he met Obi at a hospital and handed the
clocks over to him. Obi gave him N10
000 to assist him with his costs
of transport.
[164] He thereafter
called the accused and informed him that the police had visited his
house. The accused told him to remain calm
wherever he is, as the
situation would calm down. He again phoned the accused on 1 October
2010 and told him that the police were
still disturbing him. The
accused once again told him to relax and that the situation would
calm down. He took the accused as a
father figure whenever he was in
a difficult situation. He remained where he was, because the accused
told him to remain wherever
he was until the situation calmed down.
[165] He went to Lagos
where Bassey assisted him with accommodation. On 3 October 2010,
Bassey telephonically informed him that
he is wanted, as his face
appeared on television and the newspapers. As a result, he fled
Nigeria and went to stay in the Republic
of Benin, until he was
arrested by members of the State Security Services, who had lured him
over the border back into Nigeria.
[166] After his arrest,
he cooperated with members of the Department of State Security
Services in Nigeria. He was not threatened,
nor tortured, nor bribed
by anybody to cooperate.
[167] He identified
photographs 1 to 8 of Exhibit “AAA” as the residence of
Mr Y.
[168]
On 8 March
2010, an amount of N250 000 was deposited into his bank account. The
same day an amount of N247 000 was withdrawn from
the account. Under
re-examination, he confirmed that he had previously made a mistake
and he bought the first batch of dynamite
in March and not in
February as he previously stated.
[42]
[169] The second time was
in July 2010 and then he again bought dynamite in August 2010. He
could not remember the exact dates that
he bought dynamite, but he
knew that he bought dynamite on three occasions and he bought
dynamite twice during July and August.
Segun
Ilori (“Segun”)
[170] He is a qualified
mechanic by trade and is also known as “David Emmanuel”
and “Stoneface”. He first
met the accused in 1996 when he
worked for the accused’s mother-in-law. At the time he used to
repair the accused mother-in-law’s
Nissan Stanza.
[171] About two years
later, whilst the accused was using the same vehicle, he discovered
that there was a hidden compartment built
between the boot of the
vehicle and the back seat, dividing the boot into two compartments by
a metal plate. Inside the compartment
he discovered AK47 rifles.
Although he did not count them, he was certain that there were more
than three. The accused found out
that he had discovered the hidden
compartment and the AK47 rifles and was very angry at him.
[172] From the year 2000
onwards, he commenced working for the accused as a driver and a
mechanic up until the accused was arrested
in Angola in July 2007.
During this period, he drove a number of different vehicles for and
on behalf of the accused.
[173] Between 1996 and
2000, he transported AK47 rifles to Port Harcourt, using the Nissan
Stanza. The accused paid him N10 000
per trip.
[174] He thereafter drove
a Toyota Dyna truck which had a hidden compartment constructed in it,
transporting AK47 rifles to Farra
Degogo and Boyloaf. He could not
remember how many trips he had made in the Dyna truck, but the
accused paid him N20 000 to N30
000 per trip. At one stage he was
stopped by policemen and agents from the Department of State Security
Services in Nigeria whilst
driving the Dyna truck. After informing
the accused hereof, they stopped using the Dyna truck and commenced
using a Mercedes Benz
truck.
[175] There was a hidden
compartment built in the Mercedes truck. He identified Exhibit “K”
as the truck which he used
to convey arms. He indicated that the
compartment was constructed between the front of the truck towards
one of the black lines
coming down and the entrance of the
compartment was from underneath the side of the truck. He identified
the arms depicted in photograph
1 of Exhibit “K4” as
items that he conveyed to Farra Degogo and Boyloaf. He was never paid
by Farra and Boyloaf for
the delivery of the arms using the Mercedes
Benz truck. The accused paid him between N50 000 and
N70 000.
[176] He also drove a
sewerage truck to load arms at the military barracks in Kaduna State.
The reason why they used a sewerage
truck was to conceal their
actions. During this time he was assisted by the accused’s
younger brother Sunny Bowie. The firearms
used to be offloaded at a
rented flat in Kaduna and loaded back into the Mercedes Benz truck,
depicted in Exhibit “K”
for onward transportation to
Boyloaf and Farra. The Mercedes Benz truck belonged to the accused.
It was bought with the accused’s
money.
[177]  After the
accused was arrested in Angola, he stopped supplying arms to Boyloaf
and Farra.
[178] He also confirmed
the fact that wires were passed from the front to the back of the
vehicles wherein hidden compartments had
been built. The accused had
given him instructions to see whether the vehicles were in working
condition.
[179] After the accused
was released from incarceration in July 2009, the accused contacted
him and requested him to buy two cars,
which he duly did.  He
gave one to Bassey and one to Kojo for them to construct hidden
compartments in the two respective
vehicles. The accused gave him N2
million with which to buy the vehicles, namely a Honda Baby Boy and
an Isuzu Jeep.
[180] He collected
military attire from Charles Okah’s residence and delivered
same to Black Moses on not more than four occasions.
Thereafter an
employee of Charles Okah, named “Friday”, used ABC
Courier Services to send the items to Mr Y.
[181] He identified the
residence of Charles Okah as reflected in photographs 1 to 5 of
Exhibit “BBB”
,
as well as the residence of Mr Y,
reflected in photographs 1 to 8 of Exhibit “AAA”.
[182] In addition hereto,
he also delivered between thirty and thirty five AK47 rifles to Black
Moses on behalf of the accused,
fifteen AK47 rifles to Obesi and
seven AK47 rifles to VIP. He identified the arms depicted in the
first row of photograph 1 of
Exhibit “VVV1” as identical
to the ones he had delivered to Black Moses, because he loaded them
into his vehicle and
delivered them to Black Moses. He also
identified the badge for the militants depicted in photograph 2 of
Exhibit “VVV1”
as having been delivered to Black Moses
and which he had initially collected from Mr Y’s residence.
According to him, the
badges were delivered to Mr Y via ABC Courier
Services. He confirmed that the badges and firearms were delivered on
the instruction
of the accused. He also delivered dynamite to Black
Moses on the instruction of the accused. This was closer to the
period of the
1 October 201 bombings.
[183] The accused called
him from South Africa in the beginning of September 2010. During this
conversation the accused instructed
him to buy four cars. The accused
told him he was going to send him N2 million to buy the vehicles.
However, he could not buy the
cars, so the accused directed Obi to
buy the cars. Obi phoned him and confirmed that the accused had now
directed him to buy the
cars and that he will be getting the money to
do so.
[184] He also confirmed
that Chima collected the clocks in Port Harcourt and took them to Obi
in Abuja at the end of September 2010.
[185] He was arrested in
October 2011 and immediately cooperated with the Department of State
Security Services in Nigeria and is
a voluntary witness in this
matter. He was not threatened, assaulted, or tortured, nor bribed to
cooperate with the authorities.
Bassey
Umoren (“Bassey”)
[186] He is a welder by
profession. He first did welding work for the accused in 2007. He
constructed hidden compartments for the
accused in a Dyna Truck, the
Mercedes Benz truck (See Exhibits “K” and “K5”),
a red Honda and another vehicle,
the make of which he could not
recall.
[187] In March 2010,
after receiving a call from the accused, he met with him in his hotel
room in Festac Town, Lagos. Upon his
arrival he also met his brother
Charles. It was the first time they had met. The accused told him he
has a job for him in Port
Harcourt and gave him N50 000 for
travelling and accommodation costs which he would incur in his
travels to Port Harcourt. When
he arrived in Port Harcourt he
received a call from Obi Nwabueze at the behest of the accused. Obi
took him to Mr Y’s residence
where two passenger vehicles were
parked. He constructed hidden compartments between the back seat and
the boot of the two vehicles.
Obi paid him N20 000 for materials and
he received a further N50 000 from a person he and Chima met at a
certain Junction in Port
Harcourt, after which he returned to Lagos.
[188] Towards the end of
September 2010 he received a call from Obi who informed him there was
a job for him on four cars and that
he should go to Charles’
house in Apapa, Lagos. Obi picked him up at a bus stop and took him
to Charles’ house where
the cars were parked. There were two
vehicles in addition to the one that Obi was driving. Obi said he
would bring the fourth one
when he is finished. Obi gave him N20 000
for materials. The following day he constructed hidden compartments
in the four passenger
vehicles. When he was finished he called Obi
who said he would send him money. The following day at the direction
of Obi he returned
to Charles’ residence, where Charles handed
him an envelope containing N50 000. When he arrived there he opened
one of the
vehicles back seats where he had constructed the
compartment and observed bullet proof vests, army vests and boots
stored therein.
There were two Mazda’s, a Hyundai and a Honda
Bullet. The one Mazda was blue in colour.
[189] On 30 September
2010, he received a call from Chima who needed a place to stay. He
accommodated him at his brother’s
residence. That evening he
saw a photograph of Chima shown on television reporting that he was
wanted. He called Chima and advised
him to flee to the Benin
Republic, which was in close proximity.
[190] He identified the
vehicle depicted in Exhibit “FF”, as well as the hidden
compartment he constructed and the items
stored therein. He also
identified the same vehicle in Exhibit “FF2”, the
residence of Mr Y reflected in Exhibit “AAA”
and Charles
Okah’s residence depicted in Exhibit “BBB”.
[191] He admitted that
the accused assisted him in buying equipment for his shop.
Selekaye Victor Ben
(“Sele”) (The brother of Ebikabowei Victor Ben (aka
Boyloaf)
[192] I will refer to
this witness as “Sele” to distinguish him from his
brother Boyloaf who did not testify. Sele also
hails from the
southern parts of the Niger Delta and is part of the ethnic Ijaw
people. He confirmed the historical background
evidence of Orubebe
but supplied greater detail.
[193] The agitation first
commenced in the 1960s with Isaac Adaka Boro, when he carried out the
12 days’ revolution. Later
in the 1990s with Ken Sero-Wiwa, the
Ogoni’s agitated peacefully for the control of the resources in
their land.  Still
in the 1990s, the agitation continued with
the Niger Delta People Volunteer Force, the NDPVF, which commenced
the armed phase of
the Niger Delta agitation against the
discriminatory sharing of oil revenues by the Nigerian Federal
Government and the negative
environmental, health impact and limited
political platform for the Niger Delta people. In essence, the NDPVF,
led by Asari Dokubo,
stayed in camps in the creeks of the Niger Delta
and waged gorilla war fare tactics against the Federal Government of
Nigeria.
[194] After Asari was
arrested for his role in the armed struggle in 2005 MEND was
created.  MEND was formed during a meeting
held in Warri, Delta
State. The key persons present during this meeting were the accused,
Farah Degogo, his brother Ebikabowei
Victor Ben (a.k.a. Boyloaf) and
Tompolo. MEND was created to foster the economic, political,
environmental and social issues raised
by previous agitators and to
negotiate the release of Asari Dokubo.
[195] During the early
stage Sele was the spokesperson of MEND to interface between MEND and
the media via e-mail. MEND was fully
on the ground at the time and
were engaged in guerrilla warfare, attacking oil installations and
military formations in the creeks,
which included blowing up
pipelines, oil facilities and abducting of expatriates and executives
of the oil companies.
[196]
He used the
pseudonym “Brutus Ebipadei” and the e-mail address
haaizon@yahoo.com
to interact
with the media. He would send an e-mail notification to the media
that attacks would be carried out and the details
of the attacks. He
would also afterwards accept responsibility for the attacks via
e-mail on behalf of MEND. He acted on the instruction
of the
leadership of MEND which consisted of the accused, Boyloaf and Fara
Dagogo. Later the accused took over the communication
with the media
by sending e-mails using the pseudonym Jomo Gbomo. Thereafter, that
was the only way MEND communicated with the
public. The accused was
the overall leader of MEND and was known as the “General
Master”.
[197] Sele worked for the
accused by facilitating logistical arrangements for the supply of
arms and ammunition, military uniforms
and other attire to militants
via Fara Degogo and Boyloaf. He identified Exhibit “K”, a
Mercedes Benz truck, as being
one of the vehicles used by the accused
to convey arms and ammunition. The truck had a hidden compartment
constructed where the
weapons were stored. All weapons used by MEND
were supplied by the accused.
[198] At the time, a
Honda Civic passenger vehicle, which had a hidden compartment built
between the boot and the backseat of the
vehicle, was also used to
transport dynamite and hand-grenades. The accused was the owner of
both the Mercedes Benz truck and the
Honda Civic.
[199] The accused had
expertise in the manufacture of explosives. During the middle of 2006
the accused put together components
he used in car bomb explosives.
Sele bought the GSM mobile telephones which the accused used in the
assembling of the bombs. The
accused used the motherboards of remote
controls and explained to Sele that the motherboards and the mobile
telephone would act
as an interface and when the mobile phone is
called the explosion will take place. After the accused put the
components together
there would be two wire outlets, one leading to
the battery of the car and the other to the sack containing the
dynamite and explosives.
A detonation cap is then connected to the
dynamite. When the mobile phone was called, it transferred the
current to the motherboard,
which then moved to the cap and caused
the dynamite to explode. The accused put together the components,
which included the SIM
card and he was the only one who knew the
telephone number of the SIM card and the only one who could call the
mobile phone attached
to the car bomb.
[200] During December
2006, four Agip expatriate executives were kidnapped after an attack
by MEND on the Nigerian Agip Oil Company’s
terminal in Brass
Local Government. N135 million was received as ransom for their
release. One of the persons kidnapped was a man
called Francesco
Arena, the Agip Swamp manager. The accused told them Arena was a very
important man and Agip would pay whatever
was asked.
[201] As a result of the
Agib incident, Sele was arrested on 27 February 2007 and charged on
five counts of terrorism. The accused,
Boyloaf and Fara Dagogo were
also to be charged for the same crimes, but they remained at large.
However, the accused was later
arrested and taken into custody.
[202] Sele was granted
bail in June/July 2007. The accused paid him N700 000 in cash for his
efforts. Thereafter he accepted amnesty.
[203] When the accused
was in custody in Nigeria prior to receiving amnesty he was still the
leader of MEND. One of the conditions
given by all the ex-militants
in the creeks during the peace negotiations was to release their
leader, the accused.
[204] Mr X, who also
testified, is his childhood friend, whom he has known for 18 years.
On 23 September 2010 he met Mr X at the
Hilton hotel, Abuja where Mr
X informed him that the accused is planning to carry out a bomb
attack on 1 October 2010 at the Independence
Anniversary
celebrations. He took Mr X to Boyloaf where he also informed him of
the accused’s plans. He thereafter reported
what Mr X had told
him to the Nigerian authorities as it is a crime in terms of the
Nigerian Criminal Code to fail to report such
information.
[205] He identified the
camouflage and other army clothing, Exhibits 1 – 13 as items
supplied by the accused and which MEND
militants use to wear. He had
seen the items at about 70% of the militant camps.
[206] Under
cross-examination, Sele said that the bombs that exploded during
March and October 2010 were not for the interest of
the people of the
Niger Delta because the main players in the Niger Delta struggle,
stakeholders, Statesman, chiefs and politicians
who seriously fought
for the cause of the Niger Delta at various levels had assembled in
the very meeting where the bombs exploded.
[207] The accused cannot
claim to be victimised by the Nigerian government as he was granted
amnesty for every action taken by MEND
before amnesty was granted.
Whatever the accused had been arrested for is for something that was
done after amnesty. Nobody in
MEND wants to do anything to hurt the
accused because they fought with their lives for his freedom which
gave birth to amnesty.
Nobody wants to silence the accused.
Stanley
(aka Zion Amada)
[208] He met the accused
in 2007 at Boyloaf’s residence where the accused was introduced
to him as “Master”.
[209] Three months
thereafter he received a telephone call from the accused, whom he
later met in his hotel room at the Beverly
Hills Hotel, Port
Harcourt. The accused was in the company of Dakro. The accused
offered him employment to run errands for him.
As a result he paid
monies sent by the accused into various bank accounts on behalf of
the accused and bought recharge cards in
unusual large quantities
from the three major mobile telephone service operators in Nigeria.
The accused at least had three mobile
telephones in Nigeria and more
than one mobile number in South Africa. The accused did not have any
fixed residence at the time
and stayed in various hotels. Besides
himself, nobody knew where the accused was staying. He was often in
the accused’s company
when he was on the telephone and
overheard him talking over the telephone about the purchasing of guns
and ammunition and overthrowing
the government of Equatorial Guinea,
which he would use as a transit point to convey arms and ammunition
to the Niger Delta.
[210] During January 2010
he received a telephone call from the accused who requested him to
look for a private apartment in Port
Harcourt which he could use to
assemble car bombs. The accused also told him to get in touch with
Chima and that he was going to
send him money to give to Chima to buy
dynamite (‘yam’).
[211]
He received
N100 000 form the accused on 11 February 2010 which was paid into his
Intercontinental Bank account. He did not know
the person, Emmanuel
A, who paid the money into his account.
[43]
[212] Mr X called him on
29 September 2010 and informed him that he had been instructed by the
accused to take some cars to Abuja
and requested Stanley to inform
the Governor of Bayelsa State.  Stanley tried to reach the
Governor but he was unavailable.
On 30 September 2010, Mr X called
him again and informed him that he had discussed the accused’s
plans to bomb Abuja on 1
October 2010 with Sele. He passed this
information on to the Executive Governor of Bayelsa State, along with
the accused’s
telephone numbers in South Africa, +27737031170
and +27782495333.
[213] In Nigeria, the
State Governor is the Chief Security Officer of his State and it was
necessary for him to relate such information
to the Governor as he
did not want to be criminally charged.
Tamunonyemiba
Kuna (aka “General Obese”)
[214] This was a very
poor witness. He did not contribute to the clarification of the
disputes and it is uncertain why the State
called him. The least said
about him, the better.
Feroz
Osman (“Osman”)
[215] He is employed as
Sales Representative at Military Surplus Stores, trading as Army
Surplus Stores. The three statements he
made to the police are
contained in Exhibits “CC”, “DD” and “EE”.
As the name suggests the
store trades in military and camping attire.
The statements were handed in as exhibits by consent.
[216] According to
Exhibit “CC”, the accused bought various military attire
to the value of R16 050-00 which was collected
on his behalf by
William Amangabara on 26 February 2010 as well as military items
valued at R200 000-00, which the accused paid
by a Nun R Import &
Export CC cheque that was deposited in July 2010 into Military
Surplus Stores’ Standard Bank account.
[217] Exhibit “DD”,
is indicative of the accused having bought various military items
form Military Surplus Stores on
28 June 2010, which was paid for by
the cheque mentioned in the previous paragraph. The items included:
400 camouflaged vests,
470 webbing belts, 480 slings, 40 camouflaged
boots, 90 canvas boots and 14 tents.
[218] Exhibit “EE”
gives a description of the items he sold to the accused.
[219] He identified
Exhibits 1, 2 and 10 as items that he sold to the accused.
[220] He identified the
green camouflaged vests depicted in photographs 1, 2, 3 and 5 of
Exhibit “FF” as items he had
sold to the accused and
which is mentioned in the invoice.
Uchenna
Alatta Ogba (“Ogba”)
[221] He is a Medical
Doctor in the employ of the Nigerian Red-Cross Society as head of the
Department of Health and Care in Abuja.
Obi Nwabueze is his
brother-in-law.
[222] Ogba testified to a
lot of hearsay evidence regarding Obi Nwabueze who never testified,
but several of his statements were
handed in by consent as exhibits.
The admissible evidence relates solely to an event which occurred on
29 September 2010 when,
because of a message received, he met a man
who handed a Mazda saloon vehicle to him at his home. It was a
vehicle identical to
the model shown and depicted in the photographs
of Exhibit “FF”. Obi unexpectedly arrived at his
residence in Abuja
about two hours later in a black Honda which he
had driven from Warri. On 30 September 2010 Obi left his residence
with the Honda,
but did not return with it.
[223] After he learned of
Obi’s arrest, he went to the offices of the Department of State
Security Services where such arrest
was confirmed. Obi never
complained to him about any abuse or torture. He was sure that Obi
would have related any such inappropriate
conduct to him as they were
relatives and family friends.
[224] He received an
amount of N50 000 from Obi which was paid into his access bank
account by another person on 13 October 2010.
He knew it was from
Obi, because Obi phoned him and asked him if he had received the
money whereupon he confirmed the fact to Obi.
Fritz Ferdinand
Kassberger (“Kassberger”)
[225]
He is a
commercial property broker and the owner of Unit 7, Boskruin Business
Park, situated on the corner of Kelly - and Bosbok
Streets, Randpark
Ridge. He bought this property brand new in 1996/1997. It is a
commercial office park, which has 15 offices.
He manages the whole
complex and is there on a daily basis. He has never heard of Nun R
Import and Export, neither has he heard
of the accused or his wife,
Azuka. He checked his records and could not find the accused’s
name nor his business name as
having rented unit no 7 from him
before. His evidence destroys the veracity of the purported
registration certificate of Nun R
Import Export CC.
[44]
Fatai
Isiaka Adeyinka (“Adeyinka”)
[226] He is an
auto-electrician by profession with his workshop situated in Lagos,
Nigeria, which he shares with Achmed Ariyo, a
motor mechanic. He
cannot read nor write English.
[227] Adeyinka sold a
blue Mazda 626 with registration number BY 315 FKJ to Obi Nwabueze
for N25 000 on 17 September 2010. Obi also
bought a Hyundai Sonata,
blue in colour, with registration number PU 803 KJA for N380 000 from
Achmed Ariyo. He identified the
vehicle depicted in photographs 8 and
10 of Exhibit “FF” as the vehicle sold to Obi.
[228] On 30 October 2010
Adeyinka was interviewed by the State Security Services in Abuja
where he confirmed that he sold the vehicle
depicted in Exhibit “FF”
to Obi.
[229] He admitted that
the date “17/10/2010” written by him on the purchase
receipt, Exhibit “TT” is wrong
as it was intended to mean
17 September 2010 as reflected on Exhibit “TT” at the top
of the document. This is confirmed
by the fact that the change of
ownership document, Exhibit “TT1”, was also dated 17
September 2010.
[230] Lastly, he
confirmed that the vehicle did not have any hidden compartment
constructed in it prior to him selling the vehicle
to Obi, as
depicted in photographs 9, 11 and 12 of Exhibit “FF1”.
Achmed
Ariyo (“Ariyo”)
[231] This witness
confirmed in all respects the relevant evidence of Adeyinka.
Oluwale Adelakun
(“Adelakun”) and Humphrey Ohikhuare (“Ohikhuare”)
[232] These witnesses did
not contribute to the case in any meaningful way.
OFFICIAL WITNESSES
Patrick Origho
(“Origho)
[233] He is the Permanent
Secretary to the Governor’s office, Annex, Warri. He is the
administrative head and accounting officer
and is responsible for the
day-to-day business of the office. The Governor’s office is
situated along NPA Express, Warri.
He was present on 15 March 2010 at
the Post Amnesty Dialogue meeting. The purpose of the Post Amnesty
Dialogue meeting was to explore
options for: Skill acquisition and
training programmes for the former militants; re-evaluating
strategies to reconstruct the communities
devastated by militant
activities and oil pollution; rehabilitation programmes; disarmament
and amnesty, bunkering and economic
sabotage in Nigeria’s
exclusive economic zone; resource control; demilitarisation of the
Niger Delta; security and economic
development; economic empowerment
of youths in the Niger Delta Post amnesty and disarmament era; and
promoting people centred development
in the Niger Delta.
[234] The meeting was
attended by the Governors of the Delta, Edo and Imo States, the then
Minister of the Niger Delta and was chaired
by retired General Andrew
Azazi. The target group of the meeting also included the leaders of
militant organisations, multinational
oil companies, elders and
youths from the region, woman organisations and members of civil
society, media organisations and multinational
agencies.
[235]
Vanguard
Media Limited was the organisers of the Post Amnesty Dialogue
meeting. The Vanguard Newspaper had printed all the names
of the
persons invited to attend the Post Amnesty meeting in the media the
day before, 14 March 2010. The accused’s name
appeared therein
as he had been invited.
[45]
[236] The meeting took
place in the Unity Hall with about four hundred and fifty persons
being present. At about 11:00 he heard
a loud explosion. The meeting
proceeded. The explosion came from outside the hall and occurred
along the NPA Express Way. When
the chairman of the Vanguard was
presenting his introductory remarks, a second explosion occurred
which shattered the glass window
panes and doors and broke the
aluminium fittings and frames of the doors and windows.
[237] Eleven persons were
injured and one person died. These persons were outside along NPA
Express Way and were not in the hall.
Alex Mode Igben died. He was
found burnt to death in a burnt out vehicle. He left a wife and two
children. The persons injured
were taken to various hospitals for
treatment.
[238] There is a private
school next to the venue where the meeting took place. The glass in
the window panes was shattered and
the aluminium frames of the doors
and windows of the school were also damaged. Fortunately there was no
school that day as the
principal in her wisdom decided to close the
school because of the Amnesty Celebrations.
[239] MEND took
responsibility for the attack. He established this through the
printed media.
[240] Exhibit “W”
is a report documenting the incident, with an annexure listing the
persons injured, the nature of
the injuries sustained and damage to
property, the correctness whereof was not placed in dispute.
[241] Had the two
explosions occurred in the parking area of the venue it would have
been disastrous as it would have led to the
deaths of many in
attendance, including the dignitaries.
Abel
Bulus Achi (“Achi”)
[242]  He is a
Deputy Director in the employ of the Department of State and was in
charge of operations in the Niger Delta.
He coordinated all
operational activities in the State. He received intelligence on 14
March 2010 that MEND was going to disrupt
the Post Amnesty meeting in
Warri on 15 March 2010.
[243] He deployed
additional operators to the venue and received periodical reports on
the security situation concerning the threat
made by MEND. He visited
the scene of the bombings at Government House Annex, Warri and
established that two vehicles, a Toyota
Camry and a Honda, were used
in the bombing. He also confirmed that the two vehicles were parked
along the NPA Express Way in front
of Government House, Annex on
either side of the Express Way. One person had been left dead and
eleven persons sustained serious
injuries and were taken to various
hospitals for treatment. He visited the injured persons at the
respective hospitals.
[244] The deceased, Alex
Igben’s corpse was burnt beyond recognition. An examination
thereof was carried out in the morgue.
Family members came to
identify the corpse and that is how the body was identified.
[245] Government House
Annex, the International School and two vehicles passing along NPA
Express Way were damaged as a result of
the explosions.
[246] On 16 March 2010,
he learned in the print media that MEND took responsibility for the
bombings. The contents of Exhibit “Y”
were contained in
the media reports. After MEND claimed responsibility for the attack,
there was no disclaimer by MEND or anyone
else.
[247] He confirmed that
the accused cannot deny being the leader of MEND and has a
considerable influence in the Niger Delta.
Friday
Onuiche (“Onuiche”)
[248] He is the Local
Government Security Chief for Oshimili South Local Government Area,
Asaba, Delta State. His responsibilities
include the detection and
prevention of crimes against the State such as espionage, sabotage,
terrorism, subversion as well as
being responsible for VIP
Protection.
[249] He had been
deployed to Government House, Annex. He was aware of threats through
the media by Jomo Gbomo, the spokesperson
of MEND wherein Gbomo
called for the meeting to be cancelled.  As a result, robust
security operatives were mobilised to the
venue. Vehicles were
directed to park outside the venue along the NPA Express Way.
[250] The first explosion
went off at about 10:45 and the second one at about 11:00. The second
explosion impacted heavily on the
conference hall resulting in damage
to it and causing panic amongst the delegates. The Governors and
Ministers were evacuated through
the rear door and driven to safety.
The police and ballistic units had cordoned off the scene. The
explosions were caused by two
vehicles, namely a Honda and a Toyota,
which had been implanted with explosives.
[251] He confirmed that
the body of Alex Igben had been burnt beyond recognition but was
later identified by relatives. He also
confirmed the identity of the
injured persons and the damage to property. He recognised the
contents of Exhibits “Y”
and “Z” as what he
observed in both printed and electronic media.
[252] He was part of a
six-man task team appointed to conduct a preliminary investigation
within 48 hours, after which a report
was submitted to the management
of the Department of State Security Services, Delta State Command.
Bulus
Emmanuel Shehu (“Shehu”)
[253] He is an Assistant
Director in the employ of the Department of State Security Services,
Ogun State Command and is in charge
of security enforcement in that
State. He oversees border security amongst other portfolios. He also
holds a Bachelor’s Degree
in Public Administration and a
Master’s Degree in International Law.
[254]
He received
reliable information that the accused was involved in gunrunning. As
a result, on 10 March 2006, he obtained a search
and seizure warrant
from the Magistrate for the District of Ogun State to search the
accused’s residence at 2 Abak Clos,
Agbara Estate, Ogun
State.
[46]
[255] A large number of
arms and military camouflaged uniforms were found in a storeroom
attached to the main bedroom. There were
also arms and ammunition in
the main bedroom. The items seized are listed in Exhibit “BB”.
[256] The accused’s
residence is 20 to 25 kilometres from the border of the Benin
Republic. The border between Nigeria and
the Republic of Benin is
very porous, in that there are many illegal routes with only one
approved route. This became problematic
for Nigeria.
[257] He disputed that
the accused had not been residing there since 2004.
Penelope
Nkosi (“Nkosi”)
[258] She is a Warrant
Officer in the South African Police attached to the Cyber Crime
Forensic Laboratory, Pretoria. Her duties
include the forensic
investigation and analysis if computers and other electronic media.
On 15 March 2012 she was requested to
trace the origin of an e-mail
communication also purportedly from Mr Peter Timi containing as its
subject a threat in the following
terms:
“
Release Mr. Henry
Okah to the Nigerian Government or else…(MEND)”
[259] The South African
Presidency, Parliament, Ministry of Justice, Ministry of Foreign
Affairs and the South African Embassy in
Nigeria were copied therein.
Dr Efoloina Patrick
Ekphiwhre (“Ekphiwhre”)
[260] He is a medical
doctor by profession and is employed as a Senior Medical Officer in
the Ministry of Health, Delta State. He
is based at the Central
Hospital, Warri, a government facility, where he works in the
Department of Trauma and Orthopaedic Surgery.
[261]
He
testified as to the identification of Alex Igben as the deceased who
died in the explosion in Warri on 15 March 2010. Since these
events
are no longer in dispute, it is unnecessary to traverse this
witnessess’ evidence. He issued a Medical Certificate
of Cause
of Death in respect of the death of Alex Mode Igben indicating that
his death was caused by a bomb blast and burns.
[47]
Franklin
Dele Akingbade (“Akingbade”)
[262] This witness was
security officer deployed at Eagle Square on 1 October 2010 when the
bombs exploded. He testified that he
was knocked over by the blast.
He sustained injuries to his ears, forehead and thigh.
Phillip Fagbemi
(aka Thulani Adediram)
[263] He is in the employ
of the Department of State Security Services. He was a member of a
team of operatives who executed a search
and seizure warrant on 8
March 2007 at Flat B2/16 GRA2, Federal Housing Estate, Calabar after
receiving information from the accused’s
brother Sunny
concerning the conduct of the accused in using trucks to convey arms
and ammunition and the storage thereof. Exhibit
“K” is a
photograph of the accused’s truck and Exhibit “K1”
is the search warrant issued by the Magistrate
in Calabar. Exhibit
“K2” is the inventory of the items seized.
[264]
They
searched the house and the truck. Amongst the items seized, were 14
assault rifles, 9mm rounds, 15 rifle magazines and 16 rifle
slings,
which were retrieved from a hidden compartment in the rear of the
truck.
[48]
[265] The arms and
ammunition came from the military armoury. Both he and Sunny
testified in a Military Court Marshall against senior
military
officials in respect of the same weapons referred to in Exhibit “K”.
The military officials concerned were
convicted.
Abdul Abubaker
(“Abubaker”)
[266] He is an Assistant
Director in the employ of the Department of State Security and in
charge of internal security in the Federal
republic of Nigeria. He is
the lead Nigerian Investigator into the bombings of 15 March 2010 in
Warri and 1 October 2010 at Eagle
Square, Abuja.
[267]
Prior to
the event, MEND, through Jomo Gbomo, sent out a publication through
the media, warning that there will be a bomb explosion
at the event.
MEND, through Jomo Gbomo, also took responsibility for the bombings
via email communications to the media after
the event.
[49]
[268] The investigation
commenced on 1 October 2010. Investigations revealed that the name
Jomo Gbomo is synonymous with the Okah
family. The accused’s
brother, Sunny Bowie, granted an interview in the media in which he
explained how the accused and his
wife, Azuka used the email address.
This allegation has to date not been refuted by the accused or his
wife, Azuka.
[269]
He
expressly denied the accusations
[50]
of torture and threats of execution allegedly perpetrated by the
State Security Services officers to force Obi to make the nine

written statements implicating the accused. In addition, the
allegation by Obi that he was beaten for having requested a lawyer

was untrue. His assertion that he did not plan or execute the October
2010 bomb blast under the direction of the accused was also
untrue.
Inalhassam Iliasu
(“Iliasu”)
[270] He took the nine
cautionary statements written by Obi Nwabueze.  In doing so, he
followed standard operational procedures
whereby Obi was informed of
his rights to a lawyer and the right to remain silent. He took Obi to
a conference room where the caution
was explained to him. Obi was not
handcuffed during this time. At no stage was he mistreated in any
way.
[271]
Obi
understood the cautionary words after which he undertook to
voluntarily make a statement, which he subsequently wrote himself.

The witness read the statement back to Obi, who appended his
signature thereto. Obi was then taken to Abubaker, who read the
statement
back to Obi, who confirmed the correctness thereof and
appended his signature thereto.  This process was followed in
respect
of the recording of all nine statements.
[51]
[272] As the
investigation progressed, Obi was confronted with new evidence after
which he volunteered to make written statements
in respect of such
further information. Obi was a very cooperative suspect, who made his
cautionary statements freely and voluntarily.
[273] He disputed the
allegations levelled by Obi in Exhibit “QQ”.
Soobramoney
Perumal Pillay (“Pillay”)
[274]
During
September 2010, he was a Warrant Officer in the South African Police
Service, attached to the Interpol National Centre Bureau,
Extradition
and Fugitive Unit.  The accused’s particulars were
circulated on an Interpol Red Notice
[52]
,
which notice is normally circulated to seek the location and arrest
of wanted persons or fugitives.
[275] During the evening
of 29 September 2010, he and his colleague were summoned to discuss
the Interpol Red Notice with other
units in the South African Police
Service to confirm the identity of the person in the Red Notice. They
were informed that the
accused had been suspected of
terrorist-related offences and there was a possibility that car bombs
were to explode a day or two
later. As a result, they accompanied
other members of the South African Police Service to the residence of
the accused at about
04h00 in the morning of 30 September 2010.
[276] While in his
bedroom, the accused was questioned about the current situation in
Nigeria and his involvement with MEND. To
this the accused denied
being the leader of MEND and explained that the oil has been taken
from the Niger Delta area and it is
only the Government that has been
enriched and nothing has been done for the people of the Niger Delta
and for their wellbeing.
The accused further said that should he be
arrested and the people of Nigeria hear about his arrest, the
situation in the Niger
Delta would escalate, referring to the
fighting of rebels in that area. The accused denied being involved in
the scheduled detonation
of car bombs, laughed and said he was in
South Africa and how could he instigate things in Nigeria.  The
accused did not give
any specific answer when confronted with the
question why problems would escalate in Nigeria if he was not the
leader of MEND.
[277] When the accused
was questioned on the Interpol Red Notice (See Exhibit “XX”)
he explained that he had previously
been arrested in respect thereof
in Angola, extradited or repatriated to Nigeria, where he received
amnesty.
Jan
Frederick Janse van Vuuren (“Janse van Vuuren”)
[278] He is a Lieutenant
Colonel in the South African Police Service, and was stationed at
Crime Intelligence Head Office, Pretoria
during September 2010. At
about 22:00 on 29 September 2010, he received a directive to meet
fellow colleagues in the south of Johannesburg.
Upon his arrival, he
was briefed that vehicle bombs would explode in Abuja, Nigeria the
following day, which are being coordinated
from the residence of the
accused in the south of Johannesburg. Their mandate was to prevent
the explosions from taking place.
[279] Due to the lateness
of the hour, they could not obtain a search and seizure warrant and
could not wait any longer to prevent
the explosion from taking place
in Abuja. As a result, at 04:00 the morning of 30 September 2010 they
proceeded to the accused’s
residence at 19 Dibberic Drive,
Bassonia. They used an intercom system to announce their presence.
Shouting or knocking did not
work to allude the residents of their
presence.
[280] Since there was no
response, the Task Force broke the door open to gain entrance and
immediately secured the premises. The
kitchen door opened and as he
moved to the kitchen door, he and the accused ran into each other
after which he informed the accused
of his rights and placed him
under arrest. The accused then phoned his legal representative who
arrived later.
[281] He found a lot of
mobile phones and SIM cards in the accused’s bedroom, which he
collected and placed on the bed. He
also discovered books about
warfare, revolutions,
coup d’états
, modern
warfare weapons, aeroplanes, war planes, ships, small arms and big
arms. He also discovered a box of batteries used in
radio controlled
cars and tactical lights, which items he kept for safekeeping until
the arrival of the investigating officer,
Lt Col Noel Zeeman, to whom
he handed over the scene and the accused.
[282] While taking Col
Zeeman through the accused’s residence, they entered a study
room where they found an array of camouflage
attire.
Lindsay
Allen Smith (“Smith”)
[283]  He is an
inspector of explosives’ substances, appointed in terms of
Section 25 of the Explosives’ Act. Improvised
explosive devices
are often referred to as “homemade devices” and are in
essence an explosive created in the majority
of times out of
household items. “Improvised” means simply that they used
whatever they can to improvise to bring about
the explosion of the
explosive substance itself.
[284] One needs a power
source, because inevitably it is the current that will set off the
detonator, which in turn will set off
the explosive.  In many
cases, bombers also use an arming switch and an activation switch.
The arming switch is primarily
a safety measure for the bomber. One
can incorporate the arming and activating switch in a cell phone. An
activating switch could
be a number of different switches ranging
from cell phones, clocks, pressure releases, etc. He gave an example
of an egg timer
that is set for fifteen to twenty minutes and is very
similar to the timer on a microwave. Once the switch is activated, it
closes
the circuit and allows the power to flow through to the
detonator, causes a spark which, in turn, causes the high explosives
to
explode.
[285] He sketched a
circuitry drawing, marked page 8 of Exhibit “MM”, which
depicts the power source on the left and
the battery on the right,
with the circuit running to an arming switch to an activation switch
and on to a detonator and the explosives.
Once both switches are
closed, then the current flows freely from the source of power to the
detonator.
[286] The cap can be
referred to as the detonator and the explosive would be the dynamite.
When forty sticks of dynamite in which
caps had been inserted were
connected to a battery and a timer device, and inserted into a hidden
compartment in between the boot
and the back seat of a vehicle one
would classify it as a standard “vehicle-borne improvised
explosive device” (VBIED).
The timer, in determining the
time, acts as both the timing and activation switch.  The car
battery would be the power source
and the timer would be coupled
between the battery and the explosives. Once it reaches its time, the
circuit closes and the current
flows.  The reason for the
explosives to be hidden in the vehicle is to prevent its detection in
case the vehicle is searched.
[287] The more you
confine an explosive, the more pressure is generated. The explosion
causes a chemical reaction that creates a
pressure wave that is
referred to as a positive and negative pressure wave.  The more
you confine the explosive the more power
you will get out of the
explosive.  Only one detonator is required when the dynamite
sticks are in close contact with each
other.
[288] The smoke colouring
of an explosion depends on the chemicals within the explosive along
with what is involved in the explosion.
Primarily explosives like
dynamite containing ammonium nitrate will give off a pure white
smoke.  However, where nitro-glycerine
is used, it gives off a
darker to black greyish smoke, depending on the explosives used.
Fuel and oil of the car would affect
the colour of an explosion,
giving off a much darker or black smoke, so much so that there have
been reports of vehicle explosions
where the explosive contained
ammonium nitrate, yet the smoke was black.
[289] With regard to
Exhibit “JJ2”, he said the photographs depicted the
following:
1.  In respect of
photograph 3
:
Fast rechargeable, high capacity batteries, used
in remote controlled toys are popular in the improvised explosive
world.
2.  In respect of
photograph 11:  Normal 9 volt batteries, in particular are
utilised as official initiators, as they
have more than sufficient
current to detonate or to initiate a detonator.
3.  In respect of
photographs 17 to 22
:
They are male and female lugs
which are normally utilised in joining electrical wiring.
4.  In respect of
photograph 24
:
This depicts a standard soldering iron.
The soldering of wires gives one a much stronger connection than
trying to couple wires.
5.  In respect of
photograph 27
:
Depicts a vice grip/plier/cutter, which can be
used as a stripper.
6.  In respect of
photograph 28:  Depicts a multi-tool.
7.  In respect of
photograph 31:  A current tester, which is used for showing the
current flow on a particular circuit.
8.  In respect of
photograph 42:  Insulation tape used in all electrical fields to
insulate wiring.
9.  In respect of
photograph 46: AA batteries have sufficient current to activate a
detonator.
10.  In respect of
photograph 47: A magnet could be used as a break in the wiring of a
close circuit. When bomb technicians
penetrate, they break the middle
lining and use the magnet to draw the wiring towards it and its
circuit closes. Magnets could
also be used when you assemble
electronic items to hold things in place.  A plated magnet
should be used.
Johan Rudolpf
Heenen (“Heenen”)
[290] He is employed as a
control immigration officer, appointed in terms of
Section 33
of the
Immigration Act, No 13 of 2002
. By virtue of the position he holds,
he has access to all the information contained on the immigration
data base and the movement
control system of the Department of Home
Affairs.
[291] The available Home
affairs records reflect the following:
1.  The accused
first travelled to South Africa on 28 October 2001. Thereafter, the
accused frequently travelled to and from
South Africa, using Nigerian
passports up until 27 August 2007 when he departed from South Africa.
The accused is a Nigerian national.
On 13 March 2007, the accused was
granted permanent residency status in terms of
Section 27(c)
of Act
13 of 2002. This falls in a category of “own business”
and is applicable where a person arrives in South Africa
and applies
for status to run his own business as a director, CEO or is in
partnership with somebody. The accused’s wife
was granted
permanent residency on the same day and in terms of the same
subsection as the spouse of the business owner.
If she
continues in a spousing relationship, a good business relationship
and in continuity of the conditions of the permit, she
will maintain
permanent residency.
2.
The accused
departed from South Africa using his Nigerian passport on 18 February
2010 and arrived in Cotonou in the Republic of
Benin on the same day.
The passport is then endorsed as “cancelled” thereafter,
making it null and void. That was the
last entry in the passport. The
accused’s passport was replaced on 8 March 2010, issued in
Festac Town, Lagos. The passport
shows a stamp dated 19 March 2010
where the accused departs Cotonou in the Republic of Benin and he
arrives in South Africa on
the same day at OR Tambo International
Airport.
[53]
3.
On 23 May
2010, the accused departed South Africa and arrived at Katoka in
Ghana on 24 May 2010. The accused again departed Ghana
on 7 June 2010
and arrived in South Africa on 8 June 2010. No stamp indicative of
the accused having entered or departed Nigeria
exists.
[54]
4.  The accused
departed South Africa on 15 July 2010 and arrived in Ghana on 16 July
2010. He subsequently returned from Ghana
on 6 August 2010 and
arrived in South Africa on 7 August 2010. There is no stamp showing
any entry or exit to and from Nigeria.
5.  He is not
familiar with any regulations or port of entries permitting one to
enter or leave a port of entry without appearing
in front of an
immigration officer.
Hilda du Plessis
(“Du Plessis”)
[292] She is a specialist
forensic data analyst, employed by MTN, Johannesburg. In view of my
previous statement that the IT evidence
is not required for purposes
of coming to a final conclusion in this matter, it is not necessary
to consider the testimony of this
witness. There is direct evidence
by several witnesses of telephone calls made to them by the accused
which stand uncontradicted.
COUNT 13
Simon
Francis Kerry (“Kerry”)
[293] This witness came
to testify about the effect of Exhibit “L” on his
company. His evidence relates to the allegations
contained in count
13 of the indictment. Exhibit L contains a threat against the South
African Companies and their employees involved
in Nigeria. The e-mail
dated 27 January 2012 read as follows:
“
I am Mr Peter Timi
the Europe representative of the Movement for the Emancipation of the
Niger Delta (MEND). I have been mandated
to communicate our
displeasure over your country’s involvement through the South
African judiciary as it concerns our leader
Mr Henry Okah.
…
We should remind you of
the South African investments in Nigeria such as the few stated below
and we will not hesitate to disrupt
the business activities and take
the South African nationals working for these companies hostage.
- Ethnix Designs
- Pepkoro Limited
-
Standard
Bank
-
Nampak
-
KPMG
-
MTN
-
Phillips
Consulting
-
Plessey
-
Legacy
Hotels
-
Enterprise
IG
-
Dimension
Data
-
Johnnic
Africa
-
Pace
Property
-
Altech
Namitech
-
Sun
International
-
ABSA
and Southern Sun
The South African
Government through her judiciary is hereby advised to within the next
two weeks affiliate (sic) release our leader
or else the South
African citizens and companies will be at risk. Don’t forget
that no amount of Nigerian Government’s
security guarantee can
stop us.
We will carry out these
‘PROMISES’ to the later (sic), enough is enough…
Signed Mr Peter Timi
For: MEND”
[294] Kerry said that he
is the Group Risk Manager for Plessey Pty Ltd. The company installs
and build telecommunications infrastructure
for the
telecommunications industry throughout South Africa and Africa. He
looks after the risk portfolio of the company in so
far as it relates
to staff wellbeing and security for the company, locally and
internationally. The company has four South African
nationals
employed at Plessey (Pty) Ltd, Lagos, Nigeria.
[295] Plessey provides
support to Nigerian companies and infrastructure by erecting and
constructing telecommunication towers and
wireless infrastructure for
the communication industry. After receiving Exhibit “L”,
he spoke to the companies’
executives and accepted the threats
as a concern to the staff in Nigeria. They discussed whether action
should be taken. There
would have been great financial implications
for Plessey if the expatriates had to be brought back to South Africa
or if the South
African expatriates were taken hostage in Nigeria.
Plessey provides an essential service in the Nigerian infrastructure
as it is
part of the communications and network operations in that
country.
[296] Dimension Data is
Plessey’s holding company and also has South African nationals
employed in Nigeria. The persons employed
there are in excess of four
people. Dimension Data took the same measures as Plessey.
[297] He Googled the
accused’s name and based on what he found, he regarded the
threats as serious. The e-mail communications
attached to Exhibit
“L1” are indicative of how serious Plessey and Dimension
Data took the threat. Although the threat
was seen in a serious
light, the executives of Plessey and Dimension Data did not in actual
fact, according to the e-mails, evacuate
any of its personnel from
Nigeria. They put in place contingency plans for quick evacuation, if
needed. There is no evidence that
these plans were actually
implemented.
Noel Graeme Zeeman
(“Zeeman”)
[298] He is a Colonel in
the South African Police Service and the investigating officer in
this matter. The investigation commenced
on 30 September 2010. His
evidence is merely confirmatory to that of Pillay and Janse van
Vuuren and need not be considered in
detail.
[299] On 30 January 2012,
he interacted with the accused in the reception area of the court
cells at the South Gauteng High Court.
The accused’s matter had
already been postponed and the two of them were waiting for the
transport of the accused to return
him to prison. The accused
appearing visibly upset and out of his own, started complaining about
his lawyer. The accused
inter alia
said that South Africa is
going to pay, as it should not be involved in this matter, as it was
not their problem. The accused further
stated that there was nothing
preventing him from attacking South African interests in Nigeria, as
he is a warrior and will continue
fighting. The accused was talking
about the current matter before Court. On 7 February 2012, he was
approached with a letter from
Peter Timi in which MEND threatened
South African businesses if the accused is not released. He confirmed
that he made a statement
in this regard and had also attached media
articles confirming the threats made by Peter Timi.  (See
Exhibit “AAAA”)
[300] I am satisfied that
the State proved beyond a reasonable doubt that the accused is also
guilty on count 13. The evidence of
Kerry and Zeeman is
uncontroverted and prove that the accused and/or one of his
supporters, Timi, voiced threats of danger to South
African companies
and their employees operating in Nigeria.
CONSPIRACY
[301]
A
conspiracy is an agreement between two or more persons to commit, or
to aid or procure the commission of the crime.
[55]
When two or more persons are engaged in a common enterprise, the acts
and/or declarations of one of them in pursuance of that common

enterprise are admissible against the other.
[56]
[302]
When
considering the liability of the respective conspirators, it should
be borne in mind that everything done by anyone of the
conspirators
in furtherance of the conspiracy “is evidence against each and
all of the parties concerned, whether they are
present or absent or
whether or not they were individually aware of what was taking
place…and that such acts and declarations
of other
conspirators before any particular conspirator joined the
association, are only receivable against the latter to prove
the
origin, character and object of the conspiracy…”
[57]
[303]  In
S v Du
Toit en Andere (3)
2004 (1) SACR 66
(T) at 76g – h the
court held there did not have to be an agreement in a conspiracy as
to the specific acts to achieve the
greater goal. The court further
held where there was a conspiracy and plan that that acts of violence
and unrest would be committed,
the specific acts and means were
irrelevant in determining the guilt of the principal planner.
[304]  In
S v
Libazi and Another
2010 (2) SACR 233
(SCA) at [18] to [19] the
court explained its interpretation of conspiracy as follows:
“
It appears that
for a conviction on a charge of conspiracy to be achieved, the
commission of an offence must be the focal point
of the agreement
between the perpetrators. It is, however, not a requisite for a
conviction on a charge of conspiracy for the actual
offence to have
been committed. Once the planned offence is committed it appears that
it is preferable to rather convict of that
offence than the
conspiracy, or both.”
[305]  To the extent
that it may be held that I am wrong in having found the accused
guilty on the main charges, I am of the
view that the evidence in any
event clearly discloses that the accused conspired with some or all
of the individuals mentioned
in the indictment to commit the various
charges 1 to 12.
CONCLUSION
[306] For the reasons set
out above, I have come to the conclusion that the State proved beyond
a reasonable doubt the guilt of
the accused on the main charges of
counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 as set out in the
indictment.
THUS DATED AND SIGNED
THIS 21
st
DAY OF JANUARY 2013 AT JOHANNESBURG.
C. J. CLAASSEN
JUDGE OF THE SOUTH
GAUTENG HIGH COURT
Counsel for the State:
Adv S. Abrahams
Counsel for the
Accused: Adv M. I. Maunatlala instructed by Majang Attorneys
Trial commenced from 1
October 2012
Argument took place on
14 December 2012
[1]
See
Exhibit “GG1” pages 266 etsec.
[2]
See
Bogaards
v The State
(864/10)
[2011] ZASCA 196
(21 November 2011) at p 27 par [52] to p
28 par [54]
[3]
See Exhibit “GG” pp 24 – 41
[4]
See Exhibit “GG” pp 87 – 90
[5]
See Exhibit “GG” pp 52 – 86
[6]
See Exhibit “GG” pp 42 – 51
[7]
See Exhibit “GG” pp 91 – 176
[8]
See Exhibit “GG” pp 122 – 176
[9]
See Exhibit “GG” pp 133 – 142
[10]
See Exhibit “GG” photographs 150 and 151 and 158
[11]
See Exhibit “GG” pp 162, 166 and 167
[12]
See Exhibit “GG” pp 177 – 187
[13]
See Exhibit “GG” pp 191 – 273
[14]
See Exhibit “GG1” pp 1 – 18
[15]
See Exhibit “GG1” pp 19 – 24
[16]
See Exhibit “GG1” pp 25 – 64
[17]
See Exhibit “GG1” pp 65 – 91
[18]
See
Exhibit “GG1” pp 92 – 175
[19]
See
Exhibit “GG1” p 181.
[20]
See
Exhibit “GG1” p 186.
[21]
See Exhibit “GG1” pp 221 – 237
[22]
See
[29] below.
[23]
See Exhibit “GG1” pp 266 – 275
[24]
See Exhibit “GG1” pp 281 – 285
[25]
See Exhibit “GG1” p 304
[26]
See Exhibit “GG1” pp308 and 311.
[27]
See
Exhibit “GG1” pp 314 – 321
[28]
See
Exhibit “GG1” pp 322 – 323
[29]
See
Exhibit “GG1” pp 324 and 325
[30]
See
Exhibit “GG1” p 326
[31]
See
Exhibit “OO” and “OO1”
[32]
See the alternative charges to counts 1 – 12
[33]
According to the evidence of Dr C. Okafor, the accused’s
passport in question is an ECOWAS passport.  If the accused

entered Nigeria between February and March 2010, May and June 2010
and July 2010, his entry and exit were not done through a
recognised
or authorised border post and would thus have been illegal. See
Exhibit “GG1” pp 221 – 237.
[34]
See Exhibit “E”
[35]
See
Exhibits “GGG1” to “GGG7”
[36]
Also
known as Zion Amada, who worked for and was paid by the accused for
running errands for him.
[37]
The accused stayed in the Novotel Hotel in Port Harcourt for the
period 10 – 14 March 2010. See Exhibit “GG1”
pp 1,
6 – 8
[38]
This
witness did not testify but by consent the nine statements he made
to the police were handed in Exhibit “WW1 –
9”
[39]
See
Exhibit “HHH”
[40]
See Exhibit “GG1” pp 19 – 24
[41]
See Exhibit “JJJ”
[42]
See p 2 of Exhibit “ZZ”
[43]
See Exhibit “O”
[44]
See Exhibit “GG1” p 330
[45]
See Exhibit “V”.
[46]
See Exhibit “AA”
[47]
See Exhibits “X” and “HH”
[48]
See Exhibit “K4”
[49]
See Exhibits “OO” and “PP”
[50]
As made in Exhibit “QQ”
[51]
See Exhibits “WW1” to “WW9”
[52]
See Exhibit “XX”
[53]
See pp 235, 221 and 223 of Exhibit “GG1”
[54]
See p 223 Exhibit “GG1”
[55]
See
Burchell J –
Principles
of Criminal Law
Third Edition Juta at p 653.
[56]
See
R
v Miller and Another
1939 AD 106
at 115 – 118;
S
v Cooper and Others
1976 (2) SA 875
(T) at 879A – 880G
[57]
See
R
v Leibbrandt and Others
1944 AD 253
at 276;
R
v Mayet
1957 (1) SA 492
(AD) at 494