IN THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
(REPUBLIC OF SOUTH AFRICA)
CASE NO: A570/10
In the matter between: -
OKAH, HENRY EMOMOTIMI Applicant
And
THE STATE Respondent
FOUNDING AFFIDAVIT
I, the undersiqned,
HENRY EMOMOTIMI OKAH
do hereby make oath and state as follows: -
1. I am an adult male person, the Applicant herein, currently incarcerated at
the Johannesburg Prison, since my arrest on the 2nd of October 2010.
2. The content of this affidavit falls within my own personal knowledge, except
where it is expressly stated otherwise, and are both true and correct",
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3. I am charged with certain offences in terms of the Protection of
Constitutional Democracy against Terrorist and Related Activities Act, Act
33 of 2004 (lithe Terrorist Act"). I have further been advised and reconfirm
that the offences referred to in the Terrorist Act are referred to in Schedule 6
of the Criminal Procedure Act, Act 51 of 1977 and that I am obliged as such
to adduce evidence, having been afforded a reasonable opportunity to do
so, that exceptional circumstances exist which in the interest of justice
permit my release on bail.
INTRODUCTION: HISTORICAL CHRONOLOGY
4. I was arrested on the 2nd of October 2010 and appeared in Court 12 in the
Regional Court, Johannesburg for the first time on the 4th of October 2010,
()"e
approximately...bllro and a half years ago.
5. I applied for and was denied bail in a judgment by the learned Regional
Court Magistrate H Louw on the 19thof November 2010.
6. ·1 appealed the judgment of the learned Regional Court Magistrate to the
South Gauteng High Court, Johannesburg under appeal case number
CA340/2010. My appeal was heard by His Lordship Hattingh AJ and
dismissed on the ih of January 2011. A copy of the judgment of the High
Court is annexed hereto as Annexure "HEO 1".
7. An application was made on my behalf for leave to appeal, to the Supreme·
Court of Appeal of South Africa, which application was dismissed by the
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learned Hattingh AJ on the 1ih of June 2011. I attach hereto a copy of the
order dated the 1ih of June 2011 as Annexure "HEO 2".
8. The proceedings of the hearing of the application for bail, in the Regional
Court Johannesburg, as well as the transcripts of the record of the appeal
before Hattingh AJ, will be made available to the above Honourable Court at
the hearing of this application.
9. I have further been advised by my legal representatives that since
appeared in the South Gauteng High Court, Johannesburg on the 31st of
January 2012, the abovementioned Court is therefore seized with this
application by virtue of the provisions of Section 60(1)(b) of the Criminal
Procedure Act, 51 of 1977 and that the above Honourable Court should
hear this application.
NEW FACTS
10. I have been advised by my legal representatives that should new facts
arise, subsequent to the historical application and appeal referred to
hereinabove, I am entitled to apply to the above Honourable Court to take
any and all of the new facts into consideration together with the original
application and consider whether I should be released on bail.
11. The trial is set down to commence in the South Gauteng High Court on
1 October 2012 and I am advised that the trial is projected both by the State
and by my legal representatives on a conservative estimate to last at least
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18 months.
12. I have been furnished with an indictment dated 23 August 2011 under the
hand of Advocate AR Ackermann SC, confirming that the trial will be
conducted in the South Gauteng High Court.
13. In anticipation of the upcoming trial, I have been furnished with the content
of the police docket containing the statements and evidence procured by the
investigating officer.
14. The information contained in the police docket was not made available to
me or my previous legal representatives before the previous bail application
and the bail appeal.
15. As I will demonstrate hereinunder, my allegation set out in my previous
affidavits in support of my bail application before the learned Regional Court
Magistrate wherein I dealt extensively with the weakness and defects in the
State case is now apparent when a proper and detailed analysis and
comparison is made and drawn between the averments made under oath by
the· investigating officer during the previous bail application and the
evidence, or the lack thereof, which is contained in the police docket.
16. My legal representative in the bail application presented oral argument to
the learned Regional Court Magistrate and favoured him with heads of
argument in support of his submissions that I should be released on bail.
Thereafter, during the address by counsel for the State, the learned
_ ...•
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Regional Court Magistrate indicated to counsel on behalf of the State that
there was no evidential material placed before the Court, directly linking me
with the crimes allegedly committed in Nigeria, which were set out in the
charge sheet. In this regard I beg leave to refer the Court to pp 301 to 303
of the record. I deem it prudent to quote some exchanges between the
Court and counsel for the State at p 302:-
"COURT: That is not evidence.
PROSECUTOR: I also have evidence that the accused
had ... (intervenes).
COURT: I am going to interrupt you there. There
is no evidential material before the
Court. You cannot say mero motu that
you have evidence. You cannot testify,
that is not evidence before this Court,
and I will not accept it as such. It is a
mere statement from yourself If you
have evidential material by means of a
statement under oath, or evidence that
was presented somehow, maybe an
answer from the accused ... (intervenes)
PROSECUTOR: Yes.
COURT: Presented to me, but you are arguing
that a mere statement from the State's
side is somehow elevated to evidence,
that is not, it is certainly not. ..
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But if you are not going to give me
evidential material that links the accused
with the planting of this, I must accept
his version, despite the fact that my
impressions upon him in the witness
box, which you can allude to ...
(intervenes)
PROSECUTOR: Test.
COURT: That is my opinion at this stage."
17. As a result of the aforegoing, the State's legal representative requested that
the matter stand down and thereafter applied to re-open the State's case.
(at pp 306 to 307). My legal representative opposed the application, but the
Court ruled that the State be given an opportunity to re-open its case
(record, pp 308 to 309).
18. The State then presented exhibit UN", a further affidavit by the investigating
officer, Lieutenant Colonel Zeeman, which affidavit was read into the record
at pp 311 to 316 (exhibit UN", pp 954 to 958).
19. In response to exhibit UN", I filed an affidavit in terms of Section 60(11) of the
Criminal Procedure Act, seeking certain information to be furnished to me to
be able to adequately deal with exhibit UN". In this regard I refer the
Honourable Court to exhibit "P" (pp 959 to 966).
20. The learned Magistrate thereafter ordered the South African Police Service
to make a mirror copy image of the hard drive of the computer seized from
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my residence and all cellular phone hard drives as well as memories and
the affidavits underlying the application for the warrant of my arrest, the
search and seizure order issued by the Magistrate, be disclosed. I refer to
the Court Order at pp 359 to 360 of the record.
21. Despite the aforegoing, the State failed to comply with the aforesaid Court
Order. My legal representative then furnished the Court with a second
replying affidavit of myself in response to the State's failure to have
complied with the Court Order (see record, pp 364 to 388, exhibit "Q", my
second replying affidavit, pp 967 to 993). The learned Magistrate thereupon
held an enquiry as to why the State failed to comply with his Order and
heard the evidence of three witnesses, Zeeman, Mofamadi and Makusa
(record pp 394 to 412).
22. The learned Magistrate then made a ruling finding that there was an
unreasonable delay caused by the State and ordered the State that the
relevant copies as ordered by him, be presented to my legal team. I refer to
pp 422 to 423.
23. By virtue of the fact that I was at that stage detained for over a month, my
legal adviser advised me to proceed with my bail application and presented
argument that I be released on bail (see record, p 423, lines 10 to 16).
24. From a perusal of exhibit "N", as well as the judgment of the learned
Magistrate and the judgment of the High Court in dismissing my appeal,
both Courts relied heavily on the contents of exhibit "N". I have been
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advised that it is prudent to annex exhibit "N" hereto since it played a pivotal
role in both Courts denying me bail. I attach exhibit "N" hereto as Annexure
"HEO 3".
25. I have now been furnished with a copy of the police docket which I have
been advised by my legal representatives contains all the evidential material
which the State intends to use in my trial. I have studied the police docket
and state categorically that exhibit "N" is false and misleading with regard to
various issues contained therein.
26. The State alleged in Exhibit 'N' that prior to the detonation of the two motor
vehicles improvised explosive devices in Abuja, Nigeria on 1 October 2010,
two vehicles namely a Honda and a Mazda 626 were purchased in Lagos,
Nigeria, on the instruction of a person complicit in the crime.
27. The explosions took place under the supervision of one Chima Orlu a
Nigerian national. It is alleged that Chima Orlu acted on my instructions.
The State has not furnished any evidence to substantiate this allegation in
the police docket.
28. It was further alleged by the State that Chima Orlu's telephone records
revealed that he had been in contact with me on numerous occasions
leading up to 1 October 2010. The telephone records contained in the police
docket do not in any way SUbstantiate these allegations made by the State
in exhibit "N".
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29. The State also alleged that Chima Orlu sent an SMS message to me at
precisely 10h58:59 on 1 October 2010. The SMS was allegedly followed by
another SMS from Chima Orlu at 13h13:01 and again at 13h29:59 the same
day. It is suggested that the replying SMS's were sent by me to Chima Orlu
at the times given. The police docket does not contain evidence
substantiating these allegations made by the State.
30. The State also alleged that on 1 October 2010 Chima Orlu made a total of
43 voice calls and had sent 27 SMS messages to co-perpetrators and coconspirators.
The police docket does not contain any evidence
substantiating these allegations made by the State.
31. The State further alleged that Ben Ebere, a Nigerian national who is also
known as Ben Jessy or Justin Malcolm Umejesi assisted Chima Orlu in the
detonation of the said explosions. Ebere had allegedly been in telephonic
and SMS contact with me right up to 29 September 2010. The police docket
does not contain evidence substantiating these allegations made by the
State.
32. There were allegedly 1 126 calls from me to Ben Ebere during the period 7
August 2010 to 29 September 2010. The telephone records contained in the
police docket do not in any way substantiate these allegations made by the
State.
33. There were allegedly 59 SMS's sent from me to Ben Ebere during the
period 1 July 2010 to 28 September 2010. The telephone records
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contained in the police docket does not in any way substantiate these
allegations made by the State.
34. Ben Ebere is a wanted person in Nigeria. I attach hereto a newspaper
article as Annexure "HEO 4".
35. Exhibit UN" stated that Ben Jessy was in Nigeria during the time of the
bombing. There is no evidence contained in the police docket to
substantiate these allegations.
36. A copy of a photo, the original of which will be made available by my legal
representatives at the hearing hereof, of Ben Jessy and President Jacob
Zuma is attached hereto as Annexure "HEO 5".
37. An e-mail was also allegedly forwarded to me on 1 October 2010 at 16:25
by two people arrested in Nigeria relating to the bombing which stated:-
"Done, tell them to leave now."
38. The police docket does not contain evidence substantiating these
allegations made by the State.
39. I propose to deal with the allegations surrounding Chima Orlu in more detail
hereunder.
40. The allegations contained above in respect of the alleged cell phone calls
and SMS messages between me and Chima Orlu are not substantiated by
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my cell phone records contained in the police docket.
41. The e-mail from the perpetrators of the bombing of 1 October 2010
purported by the State to be in its possession, simply does not exist in the
police docket, nor does it exist on the computers or cell phones seized in
the search of my residence.
42. As stated hereinbefore, the learned Magistrate ordered that the State gave
me access to a disc containing the relevant cellphone records pertaining to
the cellphones allegedly confiscated during the search and seizure of my
residence. The relevant disc contains only two records of cellphones that
belong to my wife and/or children. I respectfully state that no incriminating
evidence was retrieved from these records. I attach the said report
pertaining thereto as "HEO _".
43. I refer to Annexure "HEO 4" above, the newspaper article which appeared
in a Nigerian newspaper and in which the public relations official of the
Nigerian Police Force is quoted as having made available photographs of
the two suspected masterminds behind the bomb blasts. It is significant to
note that no information regarding these individuals is provided other than
their names and their photographs.
44. In Annexure "HEO 4" Ben Jessy is depicted on the photograph on the right
hand side and Chima Orlu on the left hand side.
45. I can now categorically state that the allegations contained in exhibit "N" in
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particular are not substantiated by any independent evidence. I therefore
respectfully state that the so-called evidential material relied on by the
learned Regional Court Magistrate and the High Court does not exist. I
therefore respectfully state that the State's case against me is extremely
weak and it is unlikely that the State will be successful in a criminal
prosecution against me. I respectfully state that had the Regional Court and
the High Court been appraised of the true facts pertaining to the so-called
"evidence" referred to in exhibit "N", both Courts in all probability would have
granted me bail.
46. For the aforegoing reasons, I respectfully state that these factors constitute
new facts, which were previously not presented to either the Regional Court
Magistrate or to the High Court and these new facts and circumstances
entitle me to be released on bail on such conditions and in such amount as
the above Honourable Court may deem fit.
47. Although my trial has been set down for hearing in the above Honourable
Court to commence on the 1st of October 2012, I respectfully state that it is
extremely unlikely that this case will be finalised during the last term
of 2012. A perusal of the police docket clearly indicates that in order for the
State to prove the allegations contained in the charge sheet, the State will
have to call close to 50 witnesses. The list of witnesses attached to the
indictment contains' almost in its entirety witnesses who are in Nigeria. I can
only imagine that it will be a logistical nightmare for the State to secure the
attendance of all these witnesses in South Africa, and that delays in this
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regard will be unavoidable. Should the matter go on trial, I intend calling in
excess of 100 witnesses from Nigeria in defence of my case.
48. I am not certain as to whether the State will apply to the Trial Court that
certain of the witnesses' evidence be taken on commission. This in itself
will result in the trial being protracted for a very lengthy period of time.
Moreover, this trial will be extremely costly and I cannot envisage at this
stage whether I will even be able to afford legal representation for such a
lengthy period of time, let alone whether it would be viable for such a
procedure to be followed.
49. I have been arrested on the 2nd of October 2010 and at the commencement
of the trial, I would have been in custody for two years. I have been advised
that this in itself is also another factor warranting my release on bail, as the
Constitution of the Republic of South Africa provides that any person
accused of having committed a criminal offence must be afforded the right
to a speedy trial. I submit that these factors also constitute new facts which
should be considered by the above Honourable Court.
50. In order not to prolix this application unnecessarily, I wish to refer to the
judgment of the High Court on appeal to it in terms of Section 65 of the
Criminal Procedure Act, 51 of 1977. With respect to the learned Judge, it is
clear that he attached a lot of weight to the affidavit by the investigating
officer, Colonel Zeeman (exhibit UN")(see judgment on appeal, pp 6 to 8).
51. Although Section 60(11)(a) provides that I should satisfy the Court that
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exceptional circumstances exist which in the interest of justice permit my
release, I respectfully state that the new facts and circumstances set out
hereinbefore cumulatively constitute exceptional circumstances which
warrant my release on bail on such conditions as the above Honourable
Court may deem fit. Legal argument will be addressed to the above
Honourable Court at the hearing of this application in respect of the
aforegoing issues.
52. I deny the allegations contained in the indictment and will plead not guilty to
the charges proffered against me by the State.
53. In the indictment it is alleged by the State that I visited Port Harcourt in
Nigeria during February 2010 to carry out certain acts in Nigeria (indictment,
paragraphs 9 to 17).
54. On the day of the bombing of 1 October 2010, I received a call from Mr
Moses Jituboh, the Head of Personal Security to President Jonathan, who
solicited my assistance and continued cooperation with President Goodluck
Jonathan towards shifting blame for the bombings to the North of Nigeria.
55. The State attempts to substantiate this theory with contradictory statements
from its witnesses and detainees held by the Nigerian Government.
56. One of its witnesses Mr Emmanuel Allison claims his two blackberry phones
to which I sent incrirninatinq SMS'es were destroyed or lost.
57. His reason for destroying the phone, being threatening text messages he
Page 15
alleges to have received from "my boys." It is absurd to destroy a cell
phone on account of harassing or threatening text massage when the sim
card can easily be replaced.
58. Mr Allison also claims to know nothing about the bombings of
1 October 2010 but his claim of ignorance is disputed by detainee Mr Obi
Nwabueze who asserts that the State witness Mr Emmanuel Allison, in fact
coordinated the bombing of 1 October 2010.
59. The purpose of my visit to Nigeria between February and March 2010 was
to market a South African manufactured brick making machine to the Niger
Delta Development Corporation ("NDDC") and the Ministry of Niger Delta.
This product, I believe could drastically reduce building cost in Niger Delta.
A copy of the relevant documents substantiating the abovementioned is
attached hereto marked Annexure "HEO 6".
60. In order to give the above Honourable Court certain background facts, I
wish to allude to the following.
61. The Niger Delta where I come from, is an impoverished part of Nigeria that
accounts for close to Four Billion Rand of the daily revenue of the Nigeria
Government, yet it can best be described as one big "squatter camp" due to
it being without electricity, running water, proper roads, schools, hospitals,
sewerage etc.
62. Introducing this brick making machine was my contribution towards
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alleviating the suffering of the people of the Niger Delta.
63. During my visit to Nigeria, I attended a meeting with the Minister for the
Niger Delta, Mr Godsday Orubebe who promised to examine my proposal
when the Government of President Goodluck Jonathan was firmly rooted.
64. Mr Goodluck Jonathan was then the acting president of Nigeria.
65. In Port Harcourt, I was schedule to meet with the Managing Director of the
NDDC, Mr Chibuzor Ugwoha. This meeting was arranged by Messrs
Rogers Nda and Larry Ogbomo. A copy of an affidavit by Larry Ogbomo
confirming same is attached hereto marked Annexure "HEO 7".
66. I stayed at the Novotel hotel where I usually stayed whilst visiting Port
Harcourt.
67. During my stay at the Novotel hotel, I was visited by numerous people as is
the usual with me and most of these visitors were seeking some form of
assistance from me.
68. One such person was Mr Raphael Damfebo who had during 2009 been
introduced to me by Mr Zion Amada whom I had known for many years. Mr
Damfebo claimed to be unemployed and caring for a terminally ill fiance. Mr
Damfebo also made mention about previously working for a former militia
commander from the Niger Delta who had abandoned him in the pursuit of
securing lucrative contracts from the Nigerian Government.
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69. I have since 2009 assisted Mr Damfebo financially as far as it was possible,
believing him to be jobless and caring for a terminally ill fiance.
70. Upon my arrival in Port Harcourt, I was informed by Mr Larry Ogbomon that
Mr Ugwoha was unavailable for our meeting.
71. I waited a few days and decided to leave Port Harcourt when Mr Ugwoha
had still not returned and Mr Ogbomon and Mr Nda refused to assume
responsibility for the cost of my stay at the Novotel hotel. I departed Port
Harcourt for Lagos where I spent a few days.
72. The State attempts, in the police docket, to give the impression that my
relationship with President Goodluck Jonathan is very bad, but the contrary
is true, my relationship with President Goodluck Jonathan is very good and
I have known President Goodluck Jonathan since about 1999 from when he
was Deputy Governor of the 8ayelsa State.
73. Since December 2009 when he sought my support towards his campaign
·for presidency of Nigeria, we had kept in constant touch.
74. President Goodluck Jonathan used his closest advisor Mr Oronto Douglas
or the Minister for Niger Delta Mr Godsday Orubebe to keep in touch with
me.
75. Mr Oronto Douglas' numbers are known to me being +2348055077077 and
+2348033003890 while Mr Godsday Orubebe used the numbers
+2348037178432 and +2348055296693.
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76. During March 2010, the then acting President Goodluck Jonathan informed
me that he was sending Mr Oronto Douglas to the Republic of South Africa
to discuss certain issues with me. I attach hereto marked Annexure
"HEO 8" a handwritten note he wrote whilst visiting Republic of South
Africa.
77. Mr Oronto Douglas arrived on 31 March 2010 and departed 1 April 2010.
78. During my meeting with Mr Douglas, he informed me that the Northern
region of Nigeria was attempting to prevent President Goodluck Jonathan
from becoming the president of Nigeria and required my assistance.
79. During the evening of 4 April 2010, I received a call from Mr Douglas who
informed me that a certain Ms Diezani Allison-Madueke desperately
required speaking to me and requested him for my phone number.
80. Mr Douglas explained to me that she required my assistance in persuading
President Goodluck Jonathan to appoint her as Minister for Petroleum.
81. At Mr Oronto Douglas' prompting, I reluctantly accepted.
82. During the evening of 4 April 2012 and the morning of 5 April 2010, I
received approximately twenty calls from Ms Madueke explaining that she
was competing for the post of Minister of Petroleum with the now Minister of
Foreign Affairs Mr Odien Ajumogobia and required my assistance to tip the
scales in her favour.
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83. Ms Madueke requested that I put in a good word for her with President
Goodluck Jonathan whom she said had asked to speak to me.
84. At the time of her first call, President Goodluck Jonathan was busy and she
continuously called or sent text messages to update me on the Mr
Jonathan's availability.
85. During the calls he used two different telephone numbers.
86. One of these numbers was +2347034039944, which she informed me was
her number and another, which I did not save, which she had said belonged
to her personal assistant.
87. I finally spoke to President Goodluck Jonathan during the early hours of 5
April 2010.
88. During the course of our telephone conversation, he informed me that he
was sending Mr Godsday Orubebe the Minister of Niger Delta to get my
response to the meeting with Mr Oronto Douglas and to brief me on other
matters.
89. The last call I received from Ms Madueke was at 6:41 :35 on 4 April 2010
during which she thanked me for my contribution in influencing her
appointment as Minister of Petroleum.
90. Tension between the Muslim North and Christian South in Nigeria has been
running high and I was/am conscious of inflaming an already volatile
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situation still apparent in Nigeria.
91. Mr Godsday Orubebe informed me that President Goodluck Jonathan was
disturbed about rumours of me routing for General Babangida from the
North and wanted me to place an advert in the Nigerian newspapers in
support of him.
92. Mr Orubebe further said that President Goodluck Jonathan was upset with
General Babangida for contesting the election and was going to stop him,
one way or another.
93. They intended to use the Economic and Financial Crimes Commission
(EFCC) to arrest General Babangida on charges relating to an alleged
embezzlement of public funds during his tenure in office if all attempts to
discourage him from participating in the elections failed.
94. Mr Orubebe also explained to me that the North appeared to have lost
respect for former militia leaders from the Niger Delta that appeared as
. illiterate thugs going around ministries in Abuja and making threats in the
bid to secure government contracts. He went on to suggest that since I still
had credibility and commanded the respect of most fighters, I should appear
publicly as the leader of these former fighters.
95. He assured me in this meeting that President Goodluck Jonathan was
determined to ensure that political power never returned to the North which
Mr Orubebe described as parasites.
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96. To achieve this, President Goodluck Jonathan would pretend to do only one
term in office and once entrenched, he would insist on a second term.
97. Mr Orubebe in that meeting said the North had their chance and they put
forward a very ill and ailing candidate for President.
98. Before his departure, the Minister of Niger Delta asked one of his aides, Mr
Rodney Ambaowei to attend a demonstration of the brick machine I had
previously tried to market to his ministry. This is confirmed in the documents
attached above marked Annexure "HEO 9"
99. Mr Ambaowei and I attended the demonstration at the premises of the
company in North Riding, Johannesburg.
100. Approximately one month after Mr Godsday Orubebe's departure from the
Republic of South Africa, I received a call from him informing me they
(President Goodluck Jonathan and Mr Orubebe) were sending someone to
discuss confidential issues with me.
101. The person delegated was Mr Abraham Gillow and aide to Mr Godsday
Orubebe.
102. It is usual for the Nigerian Government to send representative to discuss
issues capable of causing them embarrassment, if exposes and such issues
are never discussed over the telephone.
103. On his arrival, Mr Gillow informed me that the Nigerian Government wanted
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me to supply weapons to the Nigerian Military and I replied that I was not
interested.
104. He then asked if I knew where weapons could be purchased in the Republic
of South Africa.
105. He explained to me that the Nigerian Government had obtained quotes from
China and former Eastern Block Countries and wished to compare these
quotes with the Republic of South Africa.
106. I then proceeded in his presence to call Dave Sheer Firearms.
107. The telephone call was placed on speaker for his benefit and he heard from
a representative of Dave Sheer Firearms, the conditions attached to
exporting weapons out of the Republic of South Africa.
108. In hindsight, I believe that Mr Gillow was sent on a mission by President
Goodluck Jonathan to verify rumours making the round in Nigeria that I was
importing weapons to Nigeria.
109. President Jonathan, I believe was at this point in time plotting my arrest to
prevent my participation in the Nigerian elections.
110. I was in constant touch with President Goodluck Jonathan through his
Ministers and Advisors until my arrest on 2 October 2010 and at all this time
wrongly believing my relationship with President Goodluck Jonathan IS
good.
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111. For instance I spoke at length with Mr Oronto Douglas on 29 and 30
September 2010.
112. Mr Douglas' telephone number during these calls was +2348055077077.
113. It has come to my knowledge that Mr Bassey Umoren and others confirmed
by the State as its witnesses have been detained for more than a year
without access to lawyers. Their freedom has been tied to them giving false
testimony against me at any cost during my trial.
114. The police docket provides no evidence of the construction of compartments
in the motor vehicles utilised in the bombings of 14 March 2010 and
1 October 2010 nor are there any fingerprint or any other evidence from the
recovered motor vehicles to link anyone. I attach hereto marked Annexures
"HEO 9" and "HEO 10" an e-mail from Mr Bassey Umoren dated 31 March
2010 requesting me for assistance in setting up a welding business and an
e-mail dated 8 April 2012 thanking me for helping him.
115. A study of the police docket further reveals the following: The evidence
supplied by the State in the police docket in the form of photographs of
alleged victims of the bombings of 1 October 2010 and 14 March 2010
provides proof of tampering with a possible crime scene by the Nigerian
Authorities.
116. In order to influence the proceedings against me in South Africa, the
Nigerian Government presented staged photographs showing alleged
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Page 24
victims being in various stages of being undressed.
117. The bodies in the photographs are intact showing no signs of trauma
associated with a bombing and they appear in underwear in some cases.
118. With reference to the photographs of alleged victims of the bombing of
1 October 2010 provided by the State in the police docket, great effort has
been made to conceal the identities of the corpses positioned by the
Nigerian Government. The reason for this being is that these individuals are
not victims of any bombing but corpses taken from a local mortuary for a
photo shoot.
119. The victims have been placed facing downwards to render them
unrecognizable. Those surrounded by the remnants of burnt out motor
vehicles are spotless with no sign of soot or burns even as the tarred road
beneath these bodies appears to be damaged by fire.
120. The Nigerian government claimed in a statement issued by the
spokesperson for its State Security Services (SSS) that 6 motor vehicles
were purchased for use in the bombings. The State provided 2 documents
which the State claims to be purchase receipts for the motor vehicles used
in the bombings of 1 October 2010. No further receipts of any were
provided.
121. The purchase receipts provided are clearly printed from the same computer
by two different individuals approximately 35 kilometres apart.
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122. There are no purchasers' signatures on the purchase receipts and a
deliberate misspelling of my brother's surname in other to present the
impression that both motor vehicles were purchased by him.
123. In addition, both documents are dated 17 September 2010 but on one, the
seller also dates it 17 October 2010 which is most likely the month in which
the documents were generated.
124. The State has as at dated hereof, not provided any photographs of the
autopsies of alleged victims of the bombings.
125. On examination of the pathology documentation relating to an alleged victim
of 1 October 2010 reveals inter alia the following: -
125.1. Mr Bala is reported to have passed away on 1 October 2010, at the
Kings Care Hospital Zn (zone) 4 Abuja. Evidence provided by the
State indicates that Mr Bala's corpse was transferred to the Maitama
General Hospital Mortuary on the same day of his death, 1 October
2010.
125.2. This corpse was escorted to the Maitama General Hospital by police
Corporal Akor Emmanuel, though it is not indicated where this police
corporal found this corpse. An order for post mortem examination as
is required by Nigerian law in cases of unnatural death, was served
on the C.M.D (Chief Medical Director) of the Maitama General
Hospital Abuja on 6 October 2010, and the post mortem examination
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from evidence provided by the State indicates to have been
conducted on 6 October 2010 at the Maitama General Hospital as
per the order for post mortem examination.
125.3. The post mortem examination of Mr Verty Bala from the report of this
examination was witnessed by a C.S.P. (Chief Superintendent of
Police) whose identity is not indicated.
125.4. On conclusion of the post mortem examination of Mr Verty Bala, a
warrant to bury was issued on the same day of the autopsy, 6
October 2010. A warrant to bury indicates the conclusion of post
mortem examinations and all investigation requiring the presence of
the corpse.
125.5. Contradicting the evidence supplied by the State on Mr Verty Bala, is
the Report of Medical Practitioner attached to Mr Bala's file, which
was stamped by a hospital more than 50 kilometres away from the
Maitama General Hospital where Mr Verty Bala's corpse is reported
to have been kept since 1 October 2010.
125.6. Mr Verty Bala's Report of Medical Practitioner was stamped and
signed by a medical practitioner at the National Hospital, Abuja, 2
days after Mr Bala's reported post mortem examination at the
Maitama General Hospital, and possibly released the corpse to the
family for burial as per warrant to bury.
Page 27
125.7. The medical practitioner at the National Hospital, Abuja who had
access to Mr Verty Bala's corpse, describes the corpse 8 days after
the death and 2 days after a post mortem examination as fresh and
neatly dressed with only a 1 mm puncture wound. This, contradicting
a police report which recorded cuts on the body of Mr Bala on 1
October 2010.
125.8. The Maitama General Hospital and the National Hospital, Abuja are
two entirely different, unaffiliated hospitals approximately 50
kilometres apart. A doctor in one hospital cannot attend to patients or
victims of another hospital. Such discrepancies apply to all forensic
pathology reports provided by the State for the bombings of 15 March
2010 and 1 October 2010.
126. The police docket states the following in respect of the alleged victims of the
1 October 2010 bombing:-
126.1. All 7 alleged victims were escorted by the same policeman Corporal
Akor Emmanuel to three different hospitals namely the National
Hospital Abuja, Maitama General Hospital and the Asokoro General
Hospital, all of them being remarkable distances apart.
126.2. The same Corporal Akor Emmanuel is again indicated to have
escorted the corpse of Mr Verty Bala reported not to have died on the
scene but at the Kings Care Hospital Zone 4, Abuja.
Page 28
126.3. The same medical practitioner confirmed with a stamp from the
National Hospital Abuja to have examined the bodies from 3 different
hospitals without being in possession of an authorisation to do so.
126.4. This medical practitioner claimed to have conducted investigations
and determined the cause of death of all victims, days after the post
mortem examinations and the issuing of the warrants to bury.
126.5. The post mortem reports are not signed by the pathologists who
conducted the autopsy, most probably an indication that the
pathologists at the Maitama General Hospital, Asokoro General
Hospital and the National Hospital Abuja refused to be co-opted.
These post mortem examinations may in fact never have taken
place.
126.6. In all 7 post mortem examinations of alleged victims of the 1 October
2010 bombing, the same C.S.P. (Chief Superintendent of Police) is a
witness even though some autopsies were indicated to have been
conducted the same day in three different hospitals approximately 60
kilometres apart.
126.7. Autopsies in Nigerian Government hospitals are conducted within
normal working hours between 9 am and 5 pm.
126.8. No death certificates were issued for any of the alleged victims of 1
October 2010 in spite of the fact that Nigerian law forbids the burial or
Page 29
issuing of a warrant to bury, without possession of a death certificate.
126.9. There is no evidence that the crime scene was secured for
investigators which the police docket indicates only arrived at the
crime scene 2 day after the bombing of 1 October 2010.
126.10. The only available explanation for the corpses and evidence
photographed at the scene of bombing is that the bodies were
brought to the scene 2 days later when the investigators arrived on
the scene.
126.11. The corpses were turned face down and in different positions with
an attempt to conceal their identities.
126.12. The poor picture quality is deliberate and renders it impossible to
identify any of the victims.
126.13. With regards to the alleged victim of the 15 March 2010 bombing
the death certificate was issued 8 months after the alleged death
and burial.
126.14. The Nigerian Coroner's Act forbids burial in the case of unnatural
deaths without an autopsy, death certificate and warrant to bury.
127. The issuing of Mr Igbe's death certificate 8 months after his burial is
preposterous. The death certificate of Mr Igbe an alleged victim of the
bombing of 15 March, 2010, indicates that he was last seen alive by a
- - - - -----------------
Page 30
witness on the day the death certificate was issued 8 months after his
death.
128. The indictment alleges in the summary of substantial facts that I was a
leader of the Movement for the Emancipation of the Niger Delta ("MEND").
The State also levelled certain allegations against MEND. See Summary of
Substantial Facts, paras 2 to 9 - pp 21 to 22 of the indictment.
129. An insight into the workings of MEND will assist in providing a better
understanding of the bombings of 1 October 2010 and the involvement of
President Goodluck Jonathan's Government in these bombings. MEND is
an amalgam of independent groups in the Niger Delta region of Nigeria,
which groups struggled to get their land back. This has been going on for
approximately 40 years.
130. It is my belief that President Goodluck Jonathan's Government working with
a faction of MEND planned and execute the bombings of 14 March 2010
and 1 October 2010.
131. The purpose of the 14 March 2010 bombing in my opinion was to create an
atmosphere of insecurity in Niger Delta where President Goodluck Jonathan
at that time, was fighting to oust the governor Mr Emmanuel Uduaghan
whom President Goodluck Jonathan intended to replace with his Minister for
Niger Delta, Mr Godsday Orubebe.
132. The bombing on 1 October 2010 was a platform for the elimination of
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Page 31
political opposition from the North in the form of General Ibrahim 8abangida.
The bombings of 1 October 2010 was also intended by the President
Goodluck Jonathan Government to create anti North sentiments nationwide
in order to galvanize support from other sections of Nigeria against other
Northern candidates in the Presidential elections.
133. Under the arrangement, MEND I believe was not to claim responsibility for
the bombings which the Nigerian government hoped to pin on General
8abangida and other Northern elements.
134. The claim of responsibility by the central group for a bombing possibly
carried out by the a faction of MEND punctured the plans of President
Goodluck Jonathan to round up his opposition and hold them in custody
until after the elections.
135. After the bombings of 1 October 2010, the Government of President
Goodluck Jonathan solicited my cooperation in getting the central group to
retract their claim of responsibility. In this regard, I was contacted by
amongst others, Mr Moses Jituboh, a senior police officer and Head of
Personal Security for the Nigerian president and Mr Tony Uranta, a close
ally of President Goodluck Jonathan who caters for "dirty tasks".
136. Mr Jituboh is always with the President and would not dare attempt to
facilitate such an arrangement, without authorization from the President.
137. Mr Jituboh called me from his cell with number +234807703333 at 7:20:42
Page 32
pm on 1 October 2010. In anticipation of my success in extracting a
retraction, the Nigerian Government began the process of rounding up
opposition politicians. Amongst those arrested was the Campaign manager
of General Babangida, Dr Raymond Dokpesi.
138. My refusal to cooperate in this scheme resulted in President Goodluck
Jonathan placing a call to President Jacob Zuma during the evening of 1
October 2010, requesting for President Zuma's personal assistance in
securing my arrest. My noncooperation was interpreted by President
Goodluck Jonathan as support for the Northern politicians. The South
African Government's direct interference was responsible for securing
search and arrest warrants against me.
139. Mr Jituboh's post bombing call to me was widely publicised in the Nigerian
media. If he made these call without the approval of the Nigerian President
to someone whom the Nigerian Government labels a terrorist, Mr Jituboh
would not only have lost his job but would have immediately been arrested.
140. Subsequent to Mr Jituboh's call, I ignored 4 calls from the Minister for the
Niger Delta, Mr Orubebe and 2 calls from an aide to the Minister, Mr
Abraham Gillow. I assumed they were also calling to solicit my assistance in
diverting blame for the bombings of 1 October 2010.
141. During the morning of 2 October 2010, I received two SMS'es from Mr Tony
Uranta. As earlier stated, Mr Uranata is acknowledged by Nigerians to be
responsible for "dirty tasks" President Goodluck Jonathan would not wish to
Page 33
be traced to him.
142. The SMS'es were sent from Mr Uranta's number +2348075407801.
143. The first of the two SMS'es sent by Mr Uranta at 10h23:05am stated; - "Ask
J.G to withdraw statement." (J.G being Jomo Gbomo the spokesperson for
MEND).
144. The final SMS sent at 10h28:32 am states; - "The government will blame on
Northern elements."
145. When confronted by the Nigerian media about these claims, Mr Uranta's
defence was that his phone was stolen on the day in question and the thief
must have sent me the SMS'es.
146. President Jonathan's earlier exoneration of MEND and me in the bombings
of 1 October 2010 was done with the belief that MEND would retract its
statement paving the way for President Jonathan's planned persecution of
political opposition. I attached hereto marked Annexure "HEO 11" several
press articles published on the internet in this regard.
147. President Jonathan's only concern after the bombings of 1 October 2010
was my unwillingness to assist them in directing blame for the bombings at
opposition candidates from the North of Nigeria.
148. The embarrassment caused to Mr Goodluck Jonathan by the continued
insistence in its claim of responsibility by MEND provoked President
Page 34
Jonathan's relentless pursuit and persecution of me with the assistance of
the South African Government.
149. The State has made a desperate attempt to construct its fictional case
against me based on its vague knowledge of my itinerary whilst in Nigeria,
my relationship with President Goodluck Jonathan and other members of
the Nigerian Government.
150. There are daily attacks against oil installations and workers in the Niger
Delta which the Nigerian Government with the assistance of the oil
companies cover-up. The cover-up is necessary to stabilise global oil prices
and increase investor confidence in Nigeria. Oil companies are unable to
hide such attacks only when forced to declare force majeure. Small attacks
are declared to be industrial accident and abductions by militia groups
raising funds for logistics are termed to be random and rare acts of piracy. I
attached hereto marked Annexure "HEO 12" press articles published on the
internet substantiating same.
151. It is now clear that the State possesses no such evidence and is now forced
to rely entirely on untrustworthy statements.
152. The State was very reluctant to bring forward these untrustworthy
statements at my previous bail hearing.
153. Amnesty International, Human Rights Watch and other Non Government
Organisations have clearly documented the ruthlessness, cruelty and
Page 35
mercilessness of the Nigerian Security Services in the bid to extract
confessions. A copy of their report will be made available to the above
Honourable Court and the hearing of this matter, if requested, and is not
attached hereto in order not to unnecessary attach to many supporting
documents to my affidavit.
154. I attach hereto and statement by Obi Nwabueze marked Annexure "HEO
13" in which it is stated that he has been interrogated by the SSS in respect
of this matter and has been offered freedom and money in exchange for
false testimony against me.
155. I believe that they are denied access to lawyers sometimes for months until
the interrogators are satisfied with their statement. I myself was a victim of
this process while in custody of the State Security Services of Nigeria during
2008.
156. The State's analysis of items allegedly confiscated in a questionable search
of my home had no connection with the items recovered from the scene of
the bombings or suspects in Nigeria.
157. In addition no links have been established between me and the cell phones
allegedly recovered by the Nigerian investigators from the scene of the
bombings of 1 October 2010.
158. Mr Timi Alaibe is a very fraudulent politician in Nigeria known for amassing
great wealth through the theft of public funds. He has been a civil servant all
Page 36
his life but is worth hundreds of millions of dollars. He based his claims of
my involvement on a gut feeling and was trying to curry favour with
President Goodluck Jonathan ahead of the governorship elections in the
Bayelsa State.
159. Mr Frances Osuwo (also spelled Osuvwo) through his lawyer complained
that he was forced to sign a statement prepared by Mr Raphael Damfebo
and the SSS. Mr Osuwo is completely illiterate and disputes everything
contained in the statement he signed which was later explained to him by
his lawyer.
160. Mr Francis Osuwo was denied access to a lawyer until he signed the
statement required by the Nigerian interrogators.
161. There has been reports in the Media that Mr Osuwo has since passed away
whilst in custody and I attach hereto marked Annexure "HEO 14" proof
thereof.
162. In my case, the Nigerian Government attempted to obtain confessions from
one of its informants in South Africa Mr Justin Malcolm Umejesi (aka Ben
Jessy) whom they had declared wanted under the name Ben Ebere.
163. Mr Justin Malcolm Umejesi (aka Ben Jessy) is well known to the Nigerian
High Commission in Johannesburg and has survived by feeding his handler
Mr Ado at the High Commission with false information for several years.
164. The High Commission only found out during my previous bail hearing that
Page 37
Mr Justin Umejesi has had no contact with me since early 2007.
165. The Nigerian Government had intended to obtain a confession statement
from Mr Umejesi who was to have admitted to seeing me in possession of
items he now believed to be used in the of bombs.
166. The revelation at my previous bail hearing that Mr Umejesi had been
scamming the High Commission for years and the High Commission's later
discovery of a photograph that Mr Umejesi had taken with the South African
President Mr Jacob Zuma making the rounds within the Nigerian community
and have rendered Mr Umejesi useless to the Nigerian Government.
167. Contrad iction in the statements of the State's witnesses and detainees in
Nigeria comes from the Nigerian State Security Services and its ballistics
and/or explosives experts.
168. The spokesperson for the State Security Services of Nigeria, Ms Marylyn
agar, in a statement to the media, a copy of which is attached hereto
marked Annexure "HEO 15" and following question and answer session
with the Nigerian media, made the following assertions: -
168.1. Six motor vehicles were purchased by the alleged perpetrators of the
1 October 2010 bombing for use in the bombing which is contrary to
the statement obtained from one of the detainees in Nigeria who
states that four motor vehicles were purchased for this. The State
has supplied 2 purchase receipts in support of the purchase for 2 of
Page 38
the alleged 6 motor vehicles.
168.2. Ms Marilyn Ogar of the SSS further confirms that her department
foiled a bombing by MEND using two of the six motor vehicles.
168.3. This bombing according to Ms Marilyn Ogar was planned for 29
September 2010, the SSS claimed to be in possession of the car
bombs.
168.4. None of the statements presented by the State supports this claim of
such possession by the SSS.
169. The press release by the SSS highlights measures taken to counter the
threat posed by the warnings of MEND of its intention to detonate the car
bombs at the independence anniversary celebration of 1 October 2010.
170. Of great importance to the SSS was the use of cell phone jammers which
the SSS claims was credited for preventing the detonation of these bombs
closer to Eagle Square where the celebrations were held.
171. The SSS without a doubt confirms that the bombs were detonated by the
use of cellular telephones.
172. There is no mention in any of the statements provided by the State
witnesses of the use of cellular phones in the detonation of the bombs.
173. The State's witnesses claim rather that it was timers that were used.
Page 39
174. In a report submitted to the Court and produced by the State at my earlier
bail application, the Nigerian bomb experts reported to have recovered
fragments of two cellular phones at the scene of the bombings of
1 October 2010.
175. These phones were linked to the bombings by the unique alterations
peculiar to its use for detonating bombs.
176. Such alterations include multi core cables attached to both phones.
177. The Nigerian bomb expert confirms an earlier claim made by Ms Marilyn
Ogar of the State Security Services that cell phones were indeed used in
detonating the bombs.
178. No timers or fragments of such were recovered at the bomb scene or
present in the states docket.
179. Contradicting the findings of the Nigerian experts are the statements of
State witnesses and Nigerian detainees who refer to a timer and there is no
mention of the use of cell phones.
180. The statement of Warrant Officer L.A Smith of the Forensic Science
Laboratory of the S.A.P.S, infers in paragraph 4 that the Nigerian analysis of
the scene of the bombings of 1 October 2010, yielded evidence pointing to
the use of nitro-glycerine based explosive used in the twin bombings.
181. This evidence is at odds with the statements of its witnesses, the Nigerian
Page 40
detainees and claims of the State that dynamite was used in the bombings.
182. Dynamite available in Nigeria is originally imported for commercial use in
solid mineral mining and oil exploration.
183. The use of nitro-glycerine in commercial explosive such as dynamite has
been discontinued for decades due to the unstable nature of nitro-glycerine.
184. Used in dynamite decades ago, nitro-glycerine was known to "weep" out of
the mixture and cause explosions and death just by transporting this deadly
compound.
185. Modern day dynamite has its active agent, ammonium nitrate and not nitroglycerine.
186. Upon the recent arrest in Nigeria of Mr Segun 1I0ri, Mr Nonso Nwosu (A
banker) and Mr Chima Orlu, the spokesperson for the State Security
Services of Nigeria, Ms Marilyn Ogar described the contributions of the
belowmentioned individuals in the bombings of 15 March 2010 and 1
October 2010 as follows: -
SEGUN ILORI
186.1. Arms trafficker who supplied weapons used in the bombing of
1 October 2010. Mr 1I0ri was also alleged to have supplied other
components of the bombs of 1 October 2010. The components were
never named. The allegations against Mr Ilori are outrageous as
-- -- ----------------------------
Page 41
there has never been any mention of firearms in either bombing of 15
March or 1 October 2010.
186.2. There is no mention in any of the witness statements of any activity
relating to any bombing which Mr IIori was engaged in.
186.3. The State desires to tie Mr IIori to both bombings with the hope that
an innocent SMS sent to him by me during February 2010, be
construed as part of a conspiracy to commit a horrendous crime.
186.4. This SMS which sought Mr IIori's assistance in paying monies to
certain accounts was provided to the Nigerian authorities by the
SAPS.
186.5. The monies disbursed by Mr IIori were to the accounts of individuals
who had requested financial assistance.
186.6. One such individual, Mrs. Beatrice Inaku is a widow who I have
supported since the death of her husband.
186.7. Her child resides in England and sent an email to me during or about
this time expressing her gratitude for my support.
186.8. I attached hereto marked Annexure "HEO 16" e-mails substantiating
the abovementioned.
MR CHIMA ORLU
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Page 42
186.9. Is alleged to have built the bombs of 1 October 2010 and
transported same to Abuja.
186.10. This claim contradicts previous statements by State witnesses Mr
Emmanuel Allison and detainee Mr Obi Nwabueze and the SSS
who were all in agreement that Mr Obi Nwabueze transported both
motor vehicles to Abuja.
MR NONSO NWOSU
186.11. He is alleged to have coordinated the movement of funds utilised in
the bombings of 15 March 2010 and 1 October 2010.
186.12. This allegation against Mr Nwosu was based on a SMS as this
claim is at odds with the earlier report made by the SSS and
investigating officer in Nigeria, in which Mr Abdul Abubakar named
my brother Charles Okah as the financier of the bombings of
1 October 2010.
187. A list of people that purportedly died as a result of the bombing, did not
include one Tahir Hassan Zakari Biu, copies of the contact details of the
victims of the October bomb blast and the High Court of South Africa
Indictment dated 23 August 2011.
188. It was reported in the media that Tahir's Hassan Zakari Biu family was
compensated by the Nigerian government in a widely publicised manner, for
his death as a result of the bombing.
Page 43
189. I attached hereto as Annexure "HEO 17" an article by the Daily Champion
dated 3 February 2011 and an article by Sahara reporters dated
26 December 2011 and marked "HEO 18" confirming same.
190. I repeat what I have already stated in my original bail application, namely
that: -
190.1. There was no likelihood that my release on bail will endanger the
public safety or that of any particular individual;
190.2. I have no history of violent behaviour and do not have any disposition
to commit offences referred to in Schedule 1 of the Criminal
Procedure Act whilst released on bail. I hold no grudge against
anyone either;
190.3. I submitted that there is no likelihood that I will attempt to evade my
trial;
190.4. I submitted that this is evident from my conduct since the inception of
the investigation;
190.5. I have not supplied any false information nor have I supplied any
false information for purpose of this application;
190.6. I undertake to attend court faithful on each and every occasion to
which the case might be postponed, I have no intention to live the life
of on a fugitive.
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Page 44
191. The State replied on the abovementioned as follows: -
191.1. The State said that there was a likelihood that if I will be released on
bail I will attempt to evade the trial;
191.2. The State stated that I am extremely wealthy and well connected.
Thus I am in the financial position to disappear;
191.3. The State stated that in my own handwriting I attested to previously
having attempted and, or having bribed officials;
191.4. I previously attempted to evade justice in Nigeria and was later
arrested in Angola and deported back to Nigeria;
191.5. Indicative in my diary I can rely on the systems of valuable and
influential sources and aids;
191.6. The State stated that the local investigation into the current charges
preferred against me is largely reliant on assistance from the
Nigerian authorities. As such, a request for mutual and legal
assistance will be submitted to the Nigerian authorities;
191.7. The State stated that in all likelihood I will attempt or influence or
intimidate witnesses or would conceal or destroy evidence.
192. Since the investigation and having received copies of the police docket I
have been aware of all the witnesses against me and I have and will not in
~-
Page 45
any way intimidate or influence such witnesses.
193. I further refer the above Honourable Court to paragraphs 7 to 11 of my
founding affidavit on pp 582 to 590 of the record which sets out my personal
particulars and background and pray that the above Honourable Court take
same in consideration in considering this bail application.
194. I humbly pray that the above Honourable Court grant my bail application on
new facts.
DEPONENT
THUS SIGNED AND SWORN TO AT ON THIS DAY
OF 2012, THE DEPONENT HAVING ACKNOWLEDGED THAT
HE/SHE KNOWS AND UNDERSTANDS THE CONTENTS OF THIS
AFFIDAVIT, THAT IT IS BOTH TRUE AND CORRECT TO THE BEST OF
HIS/HER KNOWLEDGE AND BELIEF, THAT HE/SHE HAS NO OBJECTION
TO TAKING THE PRESCRIBED OATH AND THAT THE PRESCRIBED OATH
WILL BE BINDING ON HIS/HER CONSCIENCE.
