The Federal
High Court, Lagos, presided over by Hon Justice Olatoregun Ishola, will on
December 12, 2016, deliver its ruling on the application filed by Chief
Government Ekpemupolo, alias Tompolo, to refer his case against the Federal
Government of Nigeria, to the Court of Appeal, for its opinion on certain
questions of law. At the resumed hearing of the case on October 25, 2016, the
Federal Government was represented by the office of the Hon Attorney-General of
the Federation, through his lawyer, Mr. Tolu Mukoro, Esq., whilst Mr.
I.B. Mohammed Esq., represented the Economic and Financial Crimes
Commission.
Addressing
the court orally on points of law, Mr. Mukoro argued that the application of
Tompolo should not be granted as section 45 of the 1999 Constitution permits
the government to enact any law, such as the Administration of Criminal Justice
Act, that is reasonably justifiable in a democratic society and Tompolo cannot
seek to strike down the ACJA. He submitted further that since Tompolo has been
consistently absent in the main criminal proceedings leading to this civil
suit, he should not be allowed to take benefit of his wrong doing to obtain any
favour from the court.
In his own
argument, Mr. I.B Mohammed stated that the EFCC would rely on paragraph 23 of
its substantive counter-affidavit, which has aptly captured their arguments
against the application for referral. He submitted further that since the suit
was commenced under the Fundamental Rights Enforcement Procedure Rules, it
cannot be referred to the Court of Appeal, as there is no provision in the said
fundamental rights rules to justify such transfer.
Replying,
Mr. Adegboruwa, leading Tosin Adesioye, Esq., for Tompolo, countered that
section 45 of the 1999 Constitution cited by Mr Mukoro is inapplicable, since
it specifically excludes section 36 of the 1999 Constitution, under which
Tompolo filed the case. He argued further that Tompolo is not seeking to strike
down the entire ACJA but rather two of its provisions in sections 221 and 306,
which he argued are unconstitutional. In response to the EFCC, Adegboruwa
stated that the application for reference was brought under sectin 295(2) of
the 1999 Constitution which having not specified the type of proceedings that
can be referred, should be of general application to all cases before the
court. Adegboruwa stated that the EFCC could not rely on its main
counter-affidavit at the interlocutory stage since the substantive case is not
being argued yet.
After taking
argument from all counsel, the court adjourned the case to December 12,
2016, for ruling.
It will be
recalled that on Friday, April 8, 2016, Tompolo filed a fresh action before the
Federal High Court, in Lagos, asking for an interpretation and nullification of
certain sections of the Administration of Criminal Justice Act, 2015, which he
stated affected his constitutional rights. Earlier on January 14, 2016, the
Federal High Court, coram the Honourable Justice Ibrahim Buba, had issued a
warrant for the arrest of Tompolo. On January 27, 2016, Tompolo filed an
application before the Court, to set aside the said warrant of arrest. On
February 8, 2016, the said application was argued and dismissed by the Court.
Tompolo thereafter filed an appeal against the Ruling of the Court, on February
18, 2016. Tompolo’s appeal was entered at the Court of Appeal on March 3, 2016,
following which his team of legal practitioners have filed the Appellant’s
brief of argument in the said appeal, awaiting the response of the Economic and
Financial Crimes Commission.
In this new
case, filed against the Federal Government of Nigeria, the Attorney-General of
the Federation, the Economic and Financial Crimes Commission, the Inspector-General
of Police, the Chief of Army Staff, the Chief of Naval Staff and the
Chief of Air Staff, Tompolo is contending that sections 221 and 306 of the
Administration of Criminal Justice Act are invalid and unconstitutional, in so
far as they seek to prevent the court from exercising its jurisdiction to
entertain any objection to a criminal charge and an application for a stay of
proceedings pending appeal. He is thus asking the Court to stop his further
trial until the determination of these issues.
The Federal
Government of Nigeria has asked the Federal High Court, Lagos, to dismiss the
case filed by Chief Government Ekpemupolo (alias Tompolo) for being an abuse of
process and an attempt to shield Tompolo from his trial. The EFCC on its part
had asked the court to dismiss Tompolo’s case since he has exercised his
constitutional right of appeal against the order of court for his arrest.
Subsequently on May 20, 2016, Tompolo through Adegboruwa, filed another
application before the Court, relying on section 295(2) of the 1999
Constitution, for reference of the points of law raised in the main application
to the court of appeal.
Section
295(2) of the Constitution provides as follows:
“Where
any question as to the interpretation or application of this constitution
arises in any proceedings in the Federal High Court or a High Court, and the
court is of (sic) opinion that that the question involves a substantial
question of law, the court may, and shall if any party to the proceedings so
requests, refer the question to the Court of Appeal; and where any question is
referred in pursuance of this subsection, the court shall give its decision
upon the question and the court in which the question arose shall dispose of
the case in accordance with that decision.”
The
substantial questions of law for which the Tompolo seeks the Court’s reference
to the Court of Appeal are as follows:
(1) Whether sections 221
and 306 of the Administration of Criminal Justice Act, 2015, are in consonance
with sections 4 (8) 6 and 36 of the Constitution the Federal Republic of
Nigeria, 1999.
(2) Whether sections 221
and 306 of the Administration of Criminal Justice Act, 2015, are in consonance
with Article 7 (1) (d) of the African Charter on Human and Peoples’ Rights
(Ratification and Enforcement) Act, Laws of the Federation of Nigeria, 2004.
(3) Whether sections 221
and 306 of the Administration of Criminal Justice Act, 2015, do not constitute
flagrant violations of the constitutional right of the Applicant, guaranteed
under section 36 of the Constitution the Federal Republic of Nigeria, 1999 and
Article 7 (1) (d) of the African Charter on Human and Peoples’ Rights.
For the
records, sections 221 and 306 of the Administration of Criminal Justice Act,
state as follows:
“221. Objections shall not be taken or
entertained during proceedings or trial on the ground of an imperfect or
erroneous charge.”
While Section 306 then goes further to state thus:
“306. An application for stay of proceedings
in respect of a criminal matter before a court shall not be entertained”.
In the new
case filed, Suit No. FHC/L/CS/499/2016, Tompolo is seeking the following
reliefs, from the Court:
A. A DECLARATION that
section 221 of the Administration of Criminal Justice Act, 2015, is to the
extent that it seeks to be an absolute bar to any objection to a criminal
charge or information, already filed, especially Charge No.FHC/L/553C/2015 – Federal
Republic of Nigeria v Government Ekpemupolo (Alias Tompolo) & 9 Ors., and
Charge No. FHC/L/31C/2016 – Federal Republic of Nigeria v Ekpemupolo Chief
Government Oweize& 12 Ors., or to be filed against the applicant,
constitutes a flagrant violation of the applicant’s fundamental right to fair
hearing as guaranteed under Sections 36(1), (4) & (6) as well the inherent
powers of a court of law under Section 6(6)(a)(b) of the Constitution of the
Federal Republic of Nigeria, 1999 and Article VII of the African Charter on
Human and Peoples’ Rights (Ratification and Enforcement) Act, Laws of the
Federation of Nigeria, 2004 and is therefore illegal, unconstitutional, null
and void.
B. A
DECLARATION that section 306 of the Administration of
Criminal Justice Act, 2015 is to the extent that it seeks to be an absolute bar
to an application for a stay of proceedings pending appeal to a higher court,
in relation to a criminal charge or information, already filed, especially
Charge No.FHC/L/553C/2015 – Federal Republic of Nigeria v Government Ekpemupolo
(Alias Tompolo) & 9 Ors., Charge No. FHC/L/31C/2016 – Federal Republic of
Nigeria v Ekpemupolo Chief Government Oweize & 12 Ors., or to be filed
against the applicant, constitutes a flagrant violation of the applicant’s
fundamental right to fair hearing as guaranteed under Sections 36(1), (4) &
(6) ) as well the inherent powers of a court of law under Section 6(6)(a)(b) of
the Constitution of the Federal Republic of Nigeria, 1999 and Article VII of
the African Charter on Human and Peoples’ Rights (Ratification and Enforcement)
Act, Laws of the Federation of Nigeria, 2004 and is therefore illegal,
unconstitutional, null and void.
C. A
DECLARATION that the 1st, 2nd and 3rd respondents,
are not entitled to deploy, use, cite or in any other manner rely upon sections
221 and 306 of the Administration of Criminal Justice Act, 2015 in the
prosecution of any criminal charge or information, already filed, especially
Charge No.FHC/L/553C/2015 – Federal Republic of Nigeria v Government Ekpemupolo
(Alias Tompolo) & 9 Ors., Charge No. FHC/L/31C/2016 – Federal Republic of
Nigeria v Ekpemupolo Chief Government Oweize& 12 Ors., or any other
criminal charge or information, to be filed, against the applicant, in any
manner that will constitute a flagrant violation of the applicant’s fundamental
right to fair hearing as guaranteed under Sections 36(1), (4) & (6) of the
Constitution of the Federal Republic of Nigeria, 1999 and Article VII of the
African Charter on Human and Peoples’ Rights (Ratification and Enforcement)
Act, Laws of the Federation of Nigeria, 2004.
D. A
DECLARATION that the Respondents are not entitled to file, initiate,
prosecute or in any other manner pursue any criminal charge or information,
against the applicant, in any manner that will constitute a flagrant violation
of the applicant’s fundamental right to fair hearing as guaranteed under
Sections 36(1), (4) & (6)) as well the inherent powers of a court of law
under Section 6(6)(a)(b) of the Constitution of the Federal Republic of
Nigeria, 1999 and Article VII of the African Charter on Human and Peoples’
Rights (Ratification and Enforcement) Act, Laws of the Federation of Nigeria,
2004.
E. AN
INJUNCTION restraining the 1st, 2nd& 3rdrespondents
whether by themselves or by their servants, agents or privies or otherwise
howsoever, from filing or further filing, prosecuting or further prosecuting,
any criminal charge or information, especially Charge No.FHC/L/553C/2015 -
Federal Republic of Nigeria v Government Ekpemupolo (Alias Tompolo) & 9
Ors., Charge No. FHC/L/31C/2016 – Federal Republic of Nigeria v Ekpemupolo
Chief Government Oweize& 12 Ors., against the applicant, the prosecution of
which may constitute a flagrant violation of the applicant’s fundamental right
to fair hearing as guaranteed under Sections 36(1), (4) & (6) of the
Constitution of the Federal Republic of Nigeria, 1999 and Article VII of the
African Charter on Human and Peoples’ Rights (Ratification and Enforcement)
Act, Laws of the Federation of Nigeria, 2004.
F. AN
INJUNCTION restraining the Respondents whether by themselves or
by their servants, agents or privies or otherwise howsoever, from initiating,
filing, prosecuting or further prosecuting any criminal charge or information,
against the applicant, which may constitute a flagrant violation of the
applicant’s fundamental right to fair hearing as guaranteed under Sections
36(1), (4) & (6) of the Constitution of the Federal Republic of Nigeria,
1999 and Article VII of the African Charter on Human and Peoples’ Rights
(Ratification and Enforcement) Act, Laws of the Federation of Nigeria, 2004.
G. AN ORDER nullifying,
voiding, striking down and expunging sections 221 and 306 from the
Administration of Criminal Justice Act, 2015 to the extent of their
inconsistency with the Constitution of the Federal Republic of Nigeria, 1999.”
Tags
Politics