Peter Odili has approached Justice Regina Nwodo court in Port Harcourt to get ex-parte order restraining EFCC from arresting him.

http://www.punchontheweb.com/Articl.aspx?theartic=Art200709211574451

It is too unfortunate that Orji Uzor Kalu has set a bad precedence in this country by using Abia High Court to stop his prosecution. Now Peter Odili is on it again, but thanks to Justice Regina Nwodo who rejected the request and put EFCC on the notice.

I wonder why the government or even EFCC have not challenged the ruling of the Abia High court. That ruling will drag Nigeria 10 years backward if it is not over ruled soonest.

We need more Justice Regina Nwodo.

How person wey murder sleep wan come sleep?

Even with all the short comings of the EFCC all well meaning Nigerians know that what we have now is far far better than what we used to have when EFCC wasn't in existence.

Hey, I thought some people wanted "rule of law" to supersede everything else and the EFCC
had become the country's biggest enemy. This was the script the ex-governors wanted the
AGF to execute all along. We shall see whether the AGF can shield them under the rule of law.
Who's turn is next, Ibori or Igbinedions?

Saintchux

Only yesterterday you accused Ribadu of changing stance within 12months, but you kind have changed stance within 24hrs.

That epitomizes the difficulty of the war on corruption

Odili and his likes can only run but they cant hide and no matter how fast someone runs the arm of the law is long enough to catch up with him. We are bigining to see the handwork of the AGF but one thing is clear, the AGF will not come out of all these schemings with his integrity intact, no way, he would be thoroughly rubbished. This is because trying to shield thieves from prosecution is against God and its against the people. Time will tell.


@ Iyke-D

Going alphabetically, I think its Ibori

Speculations are rife that Ibori is in Florida, he went their en-route South Africa with a South African passport.

Nigerian authorities may have to explain how he travelled from Nigeria to South Africa, maybe our Attorney General knows better.

In a way I prefer these people to proceed on self imposed exiles if the law cannot catch up with them here in Nigeria, at least that is better than having them around flaunting their ill gotten wealth.

For sure, no matter the amount of money they stash away, they will always wish to be in Nigeria where they will see people to oppress.

So, let them go to jail or go on exile, Nigerians are cool with either option as these 2 options are the onces available for now and in the future.

saintchux,
this does not call for celebration and any arrest from now is not too early before these thieves put their houses in order.
we had 36 or more govs during the past admin, and we are not expecting anything less than 30 arrests because non can convience nigerians of his credibilities so if for any reason we have ten or less, i personally will still call it selected justice.
i am from imo state and i can realiably tell u that leaders from my part are all made financially and that is not what leadership is all about.
the masses are suffering while the leaders are enjoying to the fulliest so let the 36 or more govs be challanged openly over their leadership and a fair hearing will put future leaders on the right track and elements like the speaker of the house will be a story of the past.
the law makers shld make provissions for total independence of this efcc and by so doing things will change for good otherwise we are decieving ourselves and mind u, such a long time frame will give other govs enough rope to find their exit roots and locate a safe heaven somewhere elese only to sponsor another leadership tomorrow who will grant them a presidential pardon like was the case of umaru diko who came back to be an elder spokesman and a leader of thought.

chidichris:

the law makers shld make provissions for total independence of this efcc

True word, brother. The EFCC has been distracted too much lately and the thieves are having a field day roaming the world in style and affluence.

You guys are hilarious. A few days ago, the EFCC was the enemy and today some
of you are suggesting that they have been distracted. Yet, the distraction was created by
the AGF and his "rule of law" that you all just discovered suddenly. You are all aware that
the ex-governors have more than enough loot to buy the best legal minds that money can
afford in Nigeria in the hope that they explore every loop hole and technicalities that will
get them off the hook, yet, the blame is on the EFCC. How confused can a people get?

Its amazing but not surprising that most of those on this forum that is rooting for the EFCC
resides overseas. A lot of us understands that in our respective places of abode, things didn't
get to the state they are now without some people risking their lives to stand for what is in
the best interest of the public. The US had "JEdgar Hoover", a man that practically built
the FBI and was the face of law enforcement in the US for decades. Every other advanced
nation, had its Edgar Hoover. Yes, they had their flaws and were often controversial just like
Ribadu (controversy comes with the job), but no one can doubt their contributions to the
enthronement of the real rule of law in their respective countries.

Give Ribadu a chance to prosecute and put these thieving governors behind bars and we will
ultimately end up a better country than we are right now. You will achieve more respect for the
law at least in Nigeria through the EFCC today than through the AGF's office. Why is that? Its
because both the rich and poor are more afraid or respective of the EFCC than the AGF's office.
Its as simple as that! When Ribadu is finished with the ex-governors, we can pass the baton to
someone else, but his mission and the agency should not be railroaded at this time.

McKren:

Saintchux

Only yesterterday you accused Ribadu of changing stance within 12months, but you kind have changed stance within 24hrs.

That epitomizes the difficulty of the war on corruption

I am for rule of law.

Ribadu is over zealous and dancing to the turn of who he feels is supporting him.

I still maintain that Ribadu should have vacated the ruling of Abia high court before arresting Orji Uzor kalu. If not, he should leave the guy alone. That does not mean am supporting Orji Uzo kalu, that is rule of law.

Ribadu told NASS last year that he not answerable to them, Now because he is seeing presidency as no nonsense man, and does not support recklessness, he is running back to NASS for protection.

I will keep on being on the side of rule of law and due process no matter what. It is only due process that will move us forward, not just allowing Ribadu to arrest people any how without recourse to rule of law and fundamental right of the individual involved.

I did not support Peter Odili, neither did Is uport orji Uzor Kalu, I was against using corrupt means to fight corruption.

Iyke-D:

Hey, I thought some people wanted "rule of law" to supersede everything else and the EFCC
had become the country's biggest enemy. This was the script the ex-governors wanted the
AGF to execute all along. We shall see whether the AGF can shield them under the rule of law.
Who's turn is next, Ibori or Igbinedions?

If the court grant Odili his request then, it should be obeyed. That does not mean that he is not corrupt. That is rule of law.

What baffles me most is that the guys living outside this country keep of attacking us that in favour of rule of law as if that is how it is done in US and UK. Will FBI arrest anybody that court gave an order not to be prosecuted. Why should it be done in Nigeria.

Saintchux

sorry you are not on the side of any rule of law. Ribadu had a court warrant of arrest obtained from Abuja high court, does your obedience for rule of law not include that

@saintchux

In that case then, I pray for the governors to proceed to where ever and secure their
second "immunity". I am sure that will be perfectly fine with you. I will even go a step
further to advise the current governors to secure a post-dated court order barring any
one from prosecuting them once they leave office be it in 4 or 8 years. Trust Nigerians,
if either Odili or Kalu sails through with this, you might as well bet that this will be the
standard practices for serving governors,

But I suppose that will be perfectly OK by you even if you have no roads, schools, clinics,
etc. simply because your governor thought the best way to use the statutory allocations
[/b]was to spend them however he pleases. I highlighted statutory allocations because it
carries the weight of the law, just that your governor thought that particular "rule of law"
need not apply to him.

What baffles me most is that the guys living outside this country keep of attacking us
that in favour of rule of law as if that is how it is done in US and UK. [b]Will FBI arrest
anybody that court gave an order not to be prosecuted. Why should it be done in
Nigeria.

The reason why something like that does not happen in the US or the UK is because they
have a very well refined legal and political process that had evolved over the years. They
had men like Ribadu who dedicated their lives to ensure that the rule of law was not just a
bunch of empty words but something that is in the best interest of justice. How do you think
the Lucky Lucianos, the Al Capones, the Dillingers, etc. where brought to justice? Once upon
a time judges could be bought easily in the US or the UK too. What you will find in the US
or the UK is that the Judiciary and Law enforcement are in sync. In our shores, the EFCC is
new but our judiciary lags far behind.

Like I hinted, Edgar Hoover built the FBI and served several US presidents. Some of them
liked him and other did not, but none failed to realize what he represented when it came
to law enforcement in the country. If you think you will become the IG or the head of the
EFCC or NDLEA without knowing how to play a little politics, you are kidding yourself. How
can you not know how to play politics when almost every action you take may be read to
be politically motivated coupled with the fact that your position also requires the support of
both the presidency and that of the law makers?

I just can not believe how we tend to settle for absolute failure.

Is this what you guys called success?

The type of EFCC I am calling for would have arrested this man (Odili) along with OBJ exactly the first week of June 2007.

It is over 110 days after May 29 and 98% of the governors are still walking around freely, and you expect Nigerians to give kudos to EFCC just because Odili is finally going to be arrested?

Absolutely RUBBISH.

What is the different between Kalu and Odili?

Give me a break, you guys are not ready.

@ all, according to his piece culled from This Day paper, Odili has successfully pulled off an Orji Kalu!

Don’t arrest Odili, court orders EFCC
By Davidson Iriekpen, 09.21.2007
Friday, September 21, 2007

Like his former Abia State counterpart, Chief Orji Kalu, former governor of Rivers State, Dr. Peter Odili, has obtained a court order barring the Economic and Financial Crimes Comm-ission (EFCC) from prosecuting him for alleged corrupt practices while in office.

A Federal High Court in Port Harcourt, Rivers State, ordered the Attorney General of the Federation and Minister of Justice, Chief Michael Aond-oakaa, and EFCC not to arrest or detain Odili for the purpose of prosecution.

THISDAY gathered last night in Lagos that the order was given last week.

By this, the court has ordered EFCC or other any other government agency either jointly or severally through their agents and officials “not to arrest, detain, arraign for the purpose of prosecution” of the former governor pending the determination of the motion on notice.

The order was sequel to an ex-parte motion brought by the former governor following rumours that EFCC would arrest him any moment from now.

In the affidavit in support of the motion on notice filed on his behalf by one Ndudim Oreh, a legal practitioner based in Port Harcourt, Odili averred that about November 2006 and January 2007, the 2nd Respondent (EFCC), allegedly acting pursuant to its statutory powers, invited, arrested, denied and generally took steps that adversely affected the smooth running of the Government of Rivers State, under the Plaintiff/Applicant then.

He further claimed that bank records of the government were taken away and the account of the government frozen.

EFCC had earlier arrested and arraigned some immediate past ex-governors like Kalu, Chief Joshua Dariye (Plateau), Alhaji Saminu Turaki (Jigawa), Rev. Jolly Nyame (Taraba), Dr. Chimaroke Nnamani (Enugu) in court for alleged corrupt practices while in office.

Former Edo State governor, Chief Lucky Igbinedion, his ex-Delta State counterpart, Chief James Ibori and Odili were being touted as among the next set of former governors to be arraigned by EFCC.

However, the commission had earlier picked up some aides of the former Rivers State governor for interrogation.

But Kalu who had been arraigned, detained and admitted to bail by a Federal High Court in Abuja recently obtained an order of perpetual injunction from an Abia State High Court restraining EFCC from further arresting or detaining for the purpose of prosecution.

The Port Harcourt High Court also barred respondents in the suit from disseminating, publishing or circulating the report of the investigation carried out by EFCC, concerning the tenure of the plaintiff pending the determination of the substantive suit.

The court has adjourned the matter till today.

The court also ordered that the processes filed by the former governor be served on all the respondents.

It also ordered for an accelerated hearing of the motion on notice.

Odili had averred that in consequence of the situation then in Rivers State, the then Attorney-General and Commissioner for Justice of the state instituted a suit No. FHC/PHC/CSI78/2007: Attorney-General for Rivers State Vs the Economic and Financial Crimes Commission & 3 Others against the 2nd Respondent on record.

He claimed that in its judgment in the suit, after full hearing, the trial judge, Hon. Justice I. N. Buba of the Federal High Court, granted all the declaratory and injunctive reliefs sought by the Plaintiff/Applicant in that case, saying that the judge had, amongst other relief, held that the 2nd Respondent was not entitled to rely on, utilise or in any manner whatsoever put to any use any report, findings or conclusions produced or arrived at by the Respondent as a result of the purported investigation or inquiry into the appropriation, disbursing, administering or management of funds of Rivers State.

The former governor noted that shortly after handing over power to his successor, the 2nd Respondent announced to the whole world, the fact that he and some other governors, had some questions to answer, based upon the complaints received against them while in office, as well as on the basis of their investigations and findings.

Odili further averred that the 2nd Respondent shortly after demanded that all former governors should report to it, which he did and was questioned as to the alleged findings by the 2nd Respondent's operatives, concerning his activities as governor of Rivers State.

He said he answered their questions and was allowed to go and that shortly after that, some of his former colleagues, namely: - Dariye, Kalu, Nnamani and others had since been arrested and arraigned in various courts in the country for alleged financial crimes.

At this point, the existence of EFCC in Nigeria is doing more damage than anything else. Does it have to take us another 4 years to realize this fact?
Many still see OBJ when they see EFCC and these people can not be castigated for their state of minds.


Implementing a new organization to replace EFCC will immediately void any excuses coming from the corrupt government officials. I don't understand why dead heads find it very difficult to understand this fact.

Iyke-D:


The reason why something like that does not happen in the US or the UK is because they
have a very well refined legal and political process that had evolved over the years. They
had men like Ribadu who dedicated their lives to ensure that the rule of law was not just a
bunch of empty words but something that is in the best interest of justice. How do you think
the Lucky Lucianos, the Al Capones, the Dillingers, etc. where brought to justice? Once upon
a time judges could be bought easily in the US or the UK too. What you will find in the US
or the UK is that the Judiciary and Law enforcement are in sync. In our shores, the EFCC is
new but our judiciary lags far behind.

Like I hinted, Edgar Hoover built the FBI and served several US presidents. Some of them
liked him and other did not, but none failed to realize what he represented when it came
to law enforcement in the country. If you think you will become the IG or the head of the
EFCC or NDLEA without knowing how to play a little politics, you are kidding yourself. How
can you not know how to play politics when almost every action you take may be read to
be politically motivated coupled with the fact that your position also requires the support of
both the presidency and that of the law makers?

Am glad you agreed that it will not happen in UK or US

Why should it happen in Nigeria??

if court orders have stopped efcc from arresting odili and kalu what about the other govs?
efcc is still waiting for achike udenwa, chimaroke nnamali, tinubu, yar adua, jonathan goodluck etc to get court orders so that they will have a reason not to arrest them.
this is a game.
is this not the same odili who moved billions to abuja for his presidential election at party levels but was warned by obj to withdraw his ambition or face efcc. it was a bargain so why is efcc shouting now? they had agreement.
pls if anyone knows ribadu let him start from govs who are yet to get court orders.
these are all games otherwise how long time are you giving a criminal to arrange for a take off?
i do not believe this drama. the whole game will end up with all the govs running away or getting court orders because efcc does not want to do anything to them to avoid exposing the baba of utah farms.

Wow, at least someone is brave, bold and intelligent enough to understand the game, the true meaning of the game.

It is all political game and EFCC is absolutely involved.

FYI: The fight between the AGF and Ribadu is not about Nigeria or corruption, it's simply about power and ego.

Am glad you agreed that it will not happen in UK or US

Why should it happen in Nigeria??

Because Nigeria is several decades (maybe hundreds) behind in both political and legal
development, but several decades ahead on corruption and outright looting of state's
funds.

I hope you will at least agree that no invidvidual can outrightly pocket $20,000 of the
public money in the UK or US, how much more millions of dollar. That is the problem.

I'm absolutely against corruption under any circumstances, but do not let us get things twisted, corruption is part of life and in politics it is inevitable to function without corruption to some point.

Yes, corruption does take place in UK and definitely in United States; this is not done openly and doesn't have major negative impact because these countries are way too advanced.

These folks are so advanced and extremely knowledgeable to the point that they design corruption to accommodate their constitution.

In Nigeria, corruption is made too obvious because most Nigerian politicians are stupid, too greedy, power hungry and too many (citizens) are living way below poverty level.

That is the different; do not be deceived, the Oyinbos started corruption and infact, they're pretty much proud of it.

Big B1:

I'm absolutely against corruption under any circumstances, but do not let us get things twisted, corruption is part of life and in politics it is inevitable to function without corruption to some point.

@BigB1 you can deceive yourself and live in denial of what you actually are, namely the chief-advocate of corruption and corrupt individuals on Nairaland,

but you cant deceive the people reading your posts. IBB apologist, anti-EFCC, anti-Gani fawehinmi, you are against all things honest and above-board about the Nigerian project.

My man, you totally got it wrong as usual.
I'm not against all things honest and above-board about the Nigerian project as you've posted.

Yes, I'm against failure and I refuse to settle for less.
I truly feel that Nigerians deserve much more than what they are getting from these clowns. We need to focus on doing what is right, not doing the right thing.

My man, do you know the different between doing what is right and doing the right thing?

FYI: I'm not against Gani, you need to pay attention, my friend.

Big B1:


My man, do you know the different between doing what is right and doing the right thing?

My man, I do not know the difference between doing what is right and doing the right thing, can you elaborate for me please?

Donzman:

My man, I do not know the difference between doing what is right and doing the right thing, can you elaborate for me please?

I am honestly waiting to learn new gramma

Are you kidding?
Come on, you guys are too clever to be delving for an answer; be patient, it will come to you.

It is always better to "do what is right" rather than "doing the right thing"


FYI: Ribadu is doing the right thing, but not what is right.

let ribadu's long hand nab the guy fast, imagine if he secceded in becoming our president.

Kalu: AGF not party to suit — Investigation
By Tobi Soniyi and Oscarline Onwuemenyi, Abuja
Published: Monday, 24 Sep 2007
Contrary to claims by the Attorney-General of the Federation and Minister of Justice, Mr. Michael Aondoakaa (SAN), that he was faced with threat of imprisonment for disobeying a court order by an Abia State High Court, investigation has shown that the AGF was not a party in the case.

Skip to next paragraph

Photo file
Aoondoaka

The suit, filed by the Abia State Governor, Chief Orji Kalu, sought to stop the Economic and Financial Crimes Commission from prosecuting him.

A copy of the order obtained by our correspondent showed that only the EFCC, the Commissioner of Police, Abia State; the Inspector-General of Police, the State Director, State Security Service, Abia State, and the Director- General, State Security Service were listed on the order, dated Thursday, May 31, 2007. Itdd was granted ex-parte by Justice A.U. Kalu.

The order reads, “Upon reading the motion ex-parte dated May 25, 2007 and filed same day brought pursuant to Order 1 Rule 2 (1) of the Fundamental Rights (Enforcement Procedure) Rules, Articles 3, 5, 13 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Section 34, 35 and 41 of the 1999 Constitution, the verifying affidavit, affidavit of urgency and after hearing Livy Uzoukwu, SAN., esq., with A.S. Kolawole, esq., and C.K. Uba, esq., of counsel to the Applicant.

“It is hereby ordered that the applicant is granted leave to apply for the enforcement of his fundamental rights to dignity of human person, personal liberty and freedom of movement.

“It is also ordered that the leave granted shall operate as a stay of al actions or matters relating to or connected with the complaint hereof until the determination of the motion on notice.

“It is further ordered that the return date be and is hereby fixed for 14th day of June 2007.”

In justifying his decision to take over the trial of the former Abia State governor, the AGF said that he was being threatened with contempt of court.

Senior lawyers who spoke with our correspondent said that the AGF could not be charged with contempt in a case in which he was not named as a party on record.

Further investigation showed that no contempt proceeding had been initiated against the EFCC and other parties in the suit.

When the EFCC eventually arrested and charged Kalu with 107 offences, his lawyer, wrote a letter dated August 5, 2007 to President Umaru Yar’Adua, asking him to tell the EFCC to obey the order.

A copy of the letter was obtained by our correspondent.

His lawyer had earlier written a similar letter to the EFCC’s Chairman, Mallam Nuhu Ribadu. The letter was dated July 11, 2007.

It could not be ascertained if any letter was actually written to the AGF.

The President, however, referred the letter written to him by Kalu’s lawyer to the AGF and asked him to deal with the situation as appropriate.

punch

‘No court can stop prosecution of suspects’
By Femi Falana
Published: Monday, 24 Sep 2007
On May 29, 2007 the immunity conferred by Section 308 of the 1999 Constitution on the 1999-2003 set of governors expired by effluxion of time. Sensing that he might be prosecuted for corruption charges, Chief Orji Kalu, the immediate past Governor of Abia State, approached an Umuahia High Court for the enforcement of his fundamental rights to personal liberty, dignity of human person and freedom of movement. The respondents in the action are the Economic and Financial Crimes Commission, Director-General, State Security Service, the Inspector-General of Police and the Abia State Commissioner of Police.

Skip to next paragraph

File
Femi Falana



Photo file
Justice of Supreme Court, Niki Tobi

In like manner, Alhaji Saminu Turaki ex-Governor of Jigawa State, obtained a similar order, in an application for the enforcement of his fundamental rights at the Federal High Court in Kano.

According to newspaper reports, Dr. Peter Odili, the former Rivers State Governor has also approached the Federal High Court in Port Harcourt to restrain the EFCC from arresting, investigating and prosecuting him for corruption and other related charges. The learned trial Judge Regina Nwodo, who declined to grant the ex parte order, directed the ex-governor to put the anti-graft commission on notice of the application for interlocutory injunction.

Before now, applications brought pursuant to the Fundamental Rights Enforcement Procedure (Rules) 1979 for the enforcement of fundamental rights were filed in court to compel law enforcement agencies to either release suspects from custody or charge them to court. Now that the procedure is being manipulated under the cloak of human rights or rule of law to shield certain influential individuals from arrest and prosecution, it is germane to examine whether a Nigerian court has the power to restrain the police and other law enforcement agencies from arresting or prosecuting any person suspected to have committed an offence under the law.

Before the institution of the 107-count charge against Kalu, the EFCC obtained a warrant of arrest from the Federal High Court. Convinced that the EFCC had committed contempt in the circumstances, Kalu’s lawyers petitioned the Attorney-General of the Federation, Chief Michael Aandokaa (SAN). Without any reference to the EFCC the Chief Law Officer of the Republic stated in his reply to the petition that the charge pending before the Federal High Court is illegal. Consequently, Chief Kalu has filed a motion praying the trial court to quash the charge. In turn, the Federal Attorney-General has taken over the case from the EFCC with a view to discontinuing it.

With respect, it does appear that the learned chief law officer labours under the erroneous belief that a court can confer immunity on certain private persons under the pretext of securing the enforcement of their fundamental rights. It is submitted that apart from the incumbent President, Vice President, Governors, and Deputy Governors clothed with immunity by Section 308 of the constitution, no other person in Nigeria can be conferred with immunity by a court. In Fawehinmi v. I.G.P. (2002) 23 WRN 1, the Supreme Court held that even public officers who are immune from arrest and prosecution while in office can be subjected to investigation by the police.

In explaining the rationale for the decision of the Supreme Court, Uwaifo JSC stated that, “the police clearly have a duty under section 4 of the Police Act to do all they can to investigate and preserve whatever evidence is available. The evidence or some aspect of it may be the type which might be lost forever if not preserved while it is available, and in the particular instances given it can be seen that the offences are in the particular instances given it can be seen that the offences are very serious ones which the society would be unlikely overlook if it had its way. The evidence may be useful for impeachment purposes if the House of Assembly may have need of it. It may no doubt be used for prosecution of the said incumbent Governor after he has left office. But to do nothing under pretext that a Governor cannot be investigated is a disservice to the society.”

It is therefore illogical to contend that a governor who was not immune from investigation while in office can be shielded from investigation when he is out of power. No doubt, the Chief Law Officer of the Federation has erroneously misinterpreted the phrase “leave to operate as a stay of action” to mean an order of interim injunction restraining the EFCC from arresting, investigating and prosecuting Chief Orji Kalu pending the final determination of the case pending before the Umuahia High Court.

The meaning of the term “leave to operate as a stay”

In Nzewi & Ors. v. Commissioner of Police (2002) 2 HRLRA 156, which is on all fours with the facts of Chief Orji Kalu’s case, the applicants had challenged the infringement of their fundamental right to personal liberty by the police. In granting leave to the applicants the Federal High Court ordered a stay of all matters or issues emanating from or pertaining to the subject matter pending the final determination of the substantive application. Notwithstanding the pendency of the matter the 4th and 5th respondents, the investigating police officers continued with the investigation of the criminal allegation leveled against the applicants. Upon their invitation to answer the complaints against them the applicants alleged that the court order had been violated contrary to the tenets of the rule of law. Consequently, the applicants filed an application praying the court to commit the respondents to prison for disobeying the court order.

In dismissing the application for contempt in its entirety, the learned trial judge Ajakaiye stated the law correctly when he said thus “It is clear that what the Court intended in that order is that the applicants should not be arrested unless there is a legal basis or justification for it. It cannot be said to mean that the order granted to the applicants a general bill of immunity or insurance from legal processes or redress in appropriate cases. The order was not meant or could not have intended to make the applicants, or any of them an institution or anybody above the law. It was implicit in that order that while they carry on their lawful business peacefully and while they continue to be law abiding, their fundamental rights as enshrined in our Constitution remain inviolate and guaranteed. No court of law can make an order capable of turning a citizen into an out-law… There is nothing in the court’s order which forbids the police from performing their normal duties and no court will do that as that can lead to a state of general break down of law and order.”

In the same vein the Court of Appeal has decried the dangerous practice of rushing to the High Court to prevent the police from arresting, investigating and prosecuting criminal suspects. That was in the case of the Attorney-General of Anambra State v. Chief Chris Uba(2005) 33 WRN 191 where Bulkachuwa JCA held that “For a person, therefore, to go to court to be shielded against criminal investigation and prosecution is an interference of powers given by the Constitution to law officers in the control of criminal investigation. The Plaintiff has no legally recognizable right to which the court can come to his aid. His claim is not one that the court can take cognizance of, for it has disclosed no cause of action. The Plaintiff cannot expect a judicial fiat preventing a law official in the exercise of his constitutional power.”

On the unequivocal power of the state to derogate from the fundamental rights of citizens to personal liberty where they are alleged to have committed criminal offences it was held by the Court of Appeal in Ekwenugo v. FRN (2001) 6 NWLR (PT 708) 171 at 185 that “If there is a reasonable suspicion that a person has committed an offence, his liberty may be impaired temporarily. In the same vein, a person’s liberty may be tampered with so as to prevent him from committing an office. In short, it is clear that no citizen’s freedom or liberty is absolute. The freedom or liberty of a citizen ends where that of the other man starts”

Effect of irregular or illegal arrest and detention on prosecution of suspects

It is further submitted that the irregularity or illegality of an arrest or detention of any criminal suspect cannot vitiate his/her prosecution by virtue of section 101 of the Criminal Procedure Act which provides that “When any accused person is before a magistrate whether voluntarily or upon summons, or after being apprehended with or without warrant or why in custody for the same or any other offence, the preliminary inquiry or trial may be held not withstanding any irregularity, illegality, defect or error in the summons or warrant or the issuing, service, or execution of the same, and notwithstanding the want of any complaint upon oath, and notwithstanding any defect in the complaint, or any irregularity or illegality in the arrest or custody of the accused.”

That provision of the law was judicially interpreted by the Court of Appeal in the case of The State v. Osler (1991) 6 NWLR (PT 199) 576 at 588 where Omosun JCA held that “The true effect of prohibition of arrest without warrant has to do with the law of assault not with the jurisdiction of the Court… I agree with the learned SAN that it does not oust the jurisdiction of any competent court to try the offender for the offence… In my view by section 101 of the Criminal Procedure Act, it is lawful for the learned judge to try the Respondent who was before him, notwithstanding any illegality in her arrest. See also IG of Police v. Ehiguase (1957) WR NLR 129.”

In the same vein the Community Court of Justice has recently decided in the case of Alhaji Hammani Tidjani v. FRN & Ors. (Unreported Suit No: ECW:/CCJ/APP/01 /06) that the member states of the Economic Community of West African States (ECOWAS) cannot be prevented from trying anyone alleged to have committed a criminal offence in their territories. Notwithstanding that the Plaintiff, a Niger national was abducted by the Nigerian Police in Cotonou, Benin Republic the application for the enforcement of his fundamental rights was dismissed by the Community Court on the grounds that “Article 6 of the African Charter on Human and Peoples Rights duly recognizes the right of states to prosecute suspects for criminal offences and does not seek to interfere with that except where the suspect has been arrested, detained, and/or tried under a non-existing law, or law made specifically after his arrest or detention or for an offence which did not exist at the time of his arrest or detention.”

As the fundamental rights guaranteed in the constitution are not absolute there are derogations that have been recognized in the interest of public order, public safety or public morality. For instance, the right to personal liberty of any person can be justifiably violated “for the purpose of bringing him before a Court in execution of the order of a court or upon reasonable suspicion of having committed a criminal offence.” (See Section 35(1)(c ) of the 1999 Constitution). In Ekwenugo v. F.R.N. (2001) 6 NWLR (PT 708) 171, the Court of Appeal held that “If there is a reasonable suspicion that a person has committed an offence his liberty may be impaired temporarily. In the same vein, a person’s liberty may be tampered with so as to prevent him from committing an offence. In short it is clear that no citizen’s freedom is absolute. The freedom or liberty of a citizen ends where that of the other man starts.”

In that case, while enjoining judges to strive to operate the law for the attainment of social engineering Fabiyi JCA said “Nigerian judges do not operate in utopia. We operate in Nigeria. And no Nigerian judge can rightly claim he has not heard that Transparency International rated our nation as the most corrupt in the whole universe in the year 2000. this is ear-aching should judges, in the prevailing circumstances, pat Advance Fee Fraud accused persons on the back under the cloak of human rights? I think not.”

In Attorney-General, Abia State v. Attorney-General of the Federation (2006) 16 NWLR (PT 1005) 265 at 389 (Per Tobi JSC) warned every alleged treasury looter to desist from his nefarious activities as “the Independent Corrupt Practice and Other Offences Commission (ICPC) and the Economic and Financial Crimes Commission (EFCC) are watching him very closely and will, without notice, pounce on him for incarceration after due process.”

On proof of contempt of court

Having regard to the undeniable fact the Chief Orji Kalu was arrested with a warrant issued by the Federal High Court it cannot be said that the EFCC failed to observe “due process.” Since the former governor was thereafter arraigned in Court promptly the allegation that his fundamental rights were violated cannot be sustained in law. In any case, if the order of the court was disobeyed it is left for the Umuahia High Court to so pronounce. In the Attorney-General of the Federation v. Chief Adigun Ogunseitan 1 NPILR 184, it was held that by virtue of Order 6 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 1979 proceedings for committal of party who disobey a court order has to be taken as “a person cannot be addressed as a contemnor when he has not been found guilty of contempt of court.”

It is therefore subversive of the rule of law on the part of the Honourable Attorney-General of the Federation to speak so authoritatively on the illegality of the criminal charge pending before the Federal High Court, holden at Abuja. Moreso, that Chief Orji Kalu’s Counsel has filed an application praying the Court to quash the said charge. In the Military Governor of Lagos State v. Chief Emeka Ojukwu (1986) 2 NWLR (PT 18) 621 the Supreme Court held that “Once a dispute has arisen between a person and the government or authority and the dispute has been brought before the court, thereby invoking the judicial powers of the State, it is the duty of the government to allow the law to take its course or allow the legal and judicial process to run its full course.”

Finally, if the current trend of rushing to court for interim orders to abort the criminal prosecution of powerful individuals in the society is not quickly halted we are soon going to witness a situation where armed robbery and murder suspects will obtain exparte orders to restrain the police from arresting, investigating and prosecuting them. After all, they too are entitled to secure the enforcement of their fundamental rights under the rule of law.

Falana is the President of the West African Bar Association.

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PUNCH

This is true; may be in the next 4 years.

Nothing, but pure jokers!