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 releaseý 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 withiný 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 lawyerý 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
ýevidence 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.