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Godwin Tsa, Abuja
The Abuja division of the Federal High Court on Thursday declined to hear an application by detained publisher of Sahara Reporters and presidential candidate of the African Action Congress in the February 2019 elections, Omoleye Sowore, seeking to vacate its order granting the Department of State Services (DSS) permission to detain him for a period of 45 days.
Although his lawyer and human rights activist, Mr Femi Falana, SAN, pleaded with the court to give him a date to hear the application, his plea was refused by Justice Taiwo Taiwo on the grounds that his period as a vacation judge had ended.
Justice Taiwo who granted the ex parte application on August 8, 2019, had equally ordered that should the applicant require more time to conclude its investigation after the expiration of the first 45 days, he had the liberty to apply for its renewal.
However, in a motion on notice filed by his counsel, Falana, Sowore asked the court for an order setting aside, discharging and/or vacating the ex parte order directing his detention for a period of 45 days made on August 8, 2019.
The motion brought pursuant to Sections 6 (6) (B), 35 and 36(4) of the 1999 constitution and Section 293 of the Administration of Criminal Justice Act, 2015 was anchored on fact that “the said order of the honourable court breached the fundamental right provisions of the 1999 Constitution (as amended).”
The motion filed on August 9 by Falana, was predicated on 18 grounds and supported by a 24-paragraphs affidavit deposed to by one Marshall Abubakar.
Falana who appeared in court unrobed, sat at the back seat but his presence was noticed by the judge who demanded to know if he had any business to do in court.
Specifically, Justice Taiwo called his name: “Mr Falana, anything? You are not in your robe.”
Falana quickly stood up, walked towards the bench and bowed his head before the judge.
He said: “My Lord, I am here in respect of the motion we filed last Friday (Aug. 9).”
Responding, Justice Taiwo said: “I saw it and the reason I have not done anything is that I am ending my own vacation sitting tomorrow (Friday). “Have you served them (the DSS)?”
The human rights activist answered: “We served them since last week my Lord.” He also asked if the judge could hear the motion the next day (Friday).
But Justice Taiwo, appealed to him to exercise patience to enable him conclude with the case at hand and suggested they met in his chamber to discuss the issue of date.
And as soon as the judge was done with the case, he rose and Falana joined him in the office.
After few minutes later, Falana came out and the newsmen approached him. Although he declined to grant an interview, the lawyer: “We filed our motion since last week and it had not been heard, but the DSS filed its own and within 48 hours, it was heard.”
He, however, told journalists that their motion on notice would be heard next week by another judge.
“Another judge will take over on Monday and we will get the date from the judge,” he said.
Meantime, the motion by Sowore had in his motion described his detention by the DSS as illegal and unconstitutional.
He said his detention for an initial four days period before the granting of the ex parte order was illegal by virtue of Section 35 of the 1999 Constitution (as amended).
“The order ex parte brought pursuant to Section 27 (1) of the Anti-Terrorism Act, 2013 was obtained by the applicant/respondent to legalise an illegal detention by the applicant/respondent.
“The applicant/respondent dumped the video evidence in support of its application on the honourable court whilst the learned trial judge watched same in his chambers and not in the open court.
“The respondent/applicant was arrested on Saturday, August 3, 2019, before the planned RovolutionNow protest that was to take place on Monday, August 5, 2019, while he was already under the custody of the applicant/respondent.
Falana equally argued that “the persons who participated in the protests of 5th August, 2019 have been charged with unlawful assembly at the Magistrate Courts at Ebute-Metta, Lagos State and Calabar, Cross River State.
He submitted that “the applicant/respondent motion ex parte filed 5th August, 2019, did not disclose any fact capable of linking the respondent /applicant to any terrorism activity.
That in the same vein the motion filed 5th August, 2019 did not in the supporting affidavit allude to facts linking the respondents/applicants to any terrorism activity.
The applicant’s detention has exceeded the maximum period a court of law can allow the respondent to detain the applicant in accordance with the provisions of Section 35 (4) (a) of the Constitution of Nigeria (as amended) 2011 which only empowered the applicant/respondent to detain the applicants for a maximum period of two months from the date of their arrest.
That the order made on 8th August, 2019 was based on a wrong presumption and mistake that the Complaint against the respondent therein relates to terrorism.
