By Sadiq Umar – Counsel to Barrister Azibaola Roberts, Managing Director of One-Plus Holdings Limited, who has been in the custody of Economic and Financial Crimes Commission (EFCC) for close to a month, has written the Attorney-General of the Federation and Minister of Justice, Abubakar Malami (SAN), threatening to commence committal proceedings against the EFCC chairman, Mr. Ibrahim Magu.
A High Court of the Federal Capital Territory presided over by Justice Olasunbo Goodluck had on April 7th, 2016 after listening to counsel to Roberts, Chief Chris Uche SAN and Gordy Uche,SAN ordered the Commission to immediately release the MD of One-Plus Holdings and his Executive Director (Projects), Atukpa Dakoru from detention.
In the letter dated 18th March, 2016, the senior lawyer regretted that in spite of being served with the two orders of the court, EFCC has refused to obey any of the orders, and has continued to hold his client defiance of the court.
Lamented Uche,”This is regrettable, considering the fact that the government is one that has stated its commitment to respect for the rule of law and has pledged to prosecute the war against corruption within the ambit of the rule of law,” stressing, “it must also be remembered that it is before the same courts of this country that your Commission arraigns and will arraign suspects.”
Continued the senior lawyer, “We therefore request that you release our clients forthwith as ordered by the court,” threatening that “we shall be compelled to commence committal proceedings before the court if the court’s order is not complied with in line with your Commission’s motto that no one is above the law” he declared.
It would be recalled that the EFCC had on March 23, arrested Robert over alleged diversion $40 million through One-Plus Holdings, a sister company of Kakatar Construction and Engineering Company Limited, meant for securing oil pipelines. The payment was said to have been made by the detained former National Security Adviser (NSA), Col. Sambo Dasuki (rtd).
Frustrated by his prolonged detention, Robert through his lawyer Uche (SAN), approached the court for the enforcement of his fundamental rights.
In a motion ex-parte dated and filed on April 5 and brought pursuant to Order 5 Rules 3 and 4 of the fundamental Rights (Enforcement Procedure) Rules 2009, Section 35 of the 1999 Constitution (as amended), Uche (SAN) prayed the court to make “an order granting his client an interim bail pending his arraignment before a court of law by the respondent (EFCC) or pending the determination of the substantive motion in this suit.”
The senior lawyer had submitted that the court was clothed with jurisdiction to grant the applicant bail having regard to Order 4 Rule 3 and 4 of the Fundamental Rights Enforcement Rules of 2009 as well as Section 168 of the Administration of Criminal Justice Act (ACJA), 2015 and Section 35 (5) of the 1999 Constitution of the Federal Republic of Nigeria.
In the suit marked: FCT/CV/1370/2016, Uche drew the court’s attention to the physical, mental and psychological torture his client had been subjected to in an underground cell of the EFCC since March 23 when he was arrested, and urged the court to grant his client’s request.
Delivering a ruling on the application, the trial judge, Justice Goodluck Olasunbor held that Robert’s detention by the EFCC for over two weeks was unconstitutional. Justice Goodluck said that the applicant had disclosed sufficient evidence before the court to warrant the granting of his relief.
Relying on the extant provisions of the constitution, the judge averred that under section 35 (5) of the said provision, the constitution provides that a person who is under arrest or detention shall be brought before a court of law within a reasonable time. Section 35 subsection 5, 1 defines reasonable time as follows:
“In the case of an arrest or detention in any case where there is a court of competent jurisdiction within the radius of 40 kilometres within (a) period of one day and (b) in any other case a period of two days or such longer period as in the circumstance may be considered by the court to be reasonable.”
Justice Goodluck held: “flowing from the above provisions, and applying the intentions of the authors of our revered constitution in the instant scenario, the detention of the applicant for a duration of 15 days as at today (Thursday, April 7), is far in excess of the constitutionally provided time for detaining a citizen without his arrest or arraignment in a law court.
“This court has carefully examined Order 4 Rule 3 and 4 of the Fundamental Rights Fundamental Procedure Rules 2009, there it empowers the court to entertain an ex-parte application for the prevention of life or liberty of a Nigerian Citizen where exceptional hardship may be occasioned before the service of the motion on notice.
“Applying the foregoing provisions as a litmus test to the facts and circumstances of this case, I am of the view and so hold that this ex-parte application is competent and contemplated by the laws of our land. The applicant by this application disclosed that he has been in detention since 23 March, 2016 in an underground cell. This in this court’s view amounts to a deprivation of his movement and his freedom contrary to the time frame stipulated in the 1999 constitution.
I am of the view that the applicant has disclosed exceptional reason why this application should be granted. More importantly, order 4 rule 4 (1) of the fundamental rights enforcement procedural rules of 2009 empowers this court to grant bail or order the release of the applicant forthwith from detention pending the determination of the motion on notice.
“Similarly, lending credence the powers of this court to allow an interlocutory respite to the applicant in Section 168 of the ACJA 2015, which provides that “a judge of a High Court may direct that (a) bail conditions required by a magistrate court or police officer be reviewed be it a defendant in custody in a state of FCT be admitted to bail.
“My summation from a community reading of the foregoing statutes, the court is empowered to grant bail or order the release of the applicant pending the determination of the motion on notice. In the light of the foregoing considerations, this court will be exercising its powers judiciously and judicially by allowing this application.
“Accordingly, this application succeeds. The applicant is hereby admitted to bail pending his arraignment before a court of law or pending the determination of the substantive motion on notice in this suit,” the judge said.
She, however said the applicant’s bail shall be with two sureties. Each surety shall be a serving or retired Director in any of the federal government ministries or parastatal and must be resident within the federal capital territory. The applicant shall deposit his international passport to the Chief Registrar of this Court.
In the same vein, the court ordered the EFCC to release Robert’s colleague and Executive Director of Kakatar Construction and Engineering Company Limited, Mr. Dakoru Atukpa who had also been in detention for the same period.
However, inspite of the fact that the bail conditions have been fulfilled by the applicants, the EFCC has continued to detain them in their facility prompting the applicants to through the Counsel file Form 48 which is consequences of the disobedience of Court orders while they are expected to file committal proceedings against the EFCC chairman today.