Justice Gabriel Kolawole of the Federal High Court, Abuja has faulted the procedures being adopted by the Economic and Financial Crimes Commission (EFCC) in arresting and detaining suspects.
The judge said it was wrong for the EFCC to arrest suspects before or during investigation.
He also said the practice where the EFCC procures remand orders from Magistrates Courts, in cases on which they lacked jurisdiction was unlawful.
Justice Kolawole also declared unlawful and a violation of the provision of the law establishing it, where the EFCC freezes a suspect’s account without an order of court.
“The practice of arrest before trial is not only absurd; it is a corruption of the due process of law and Constitution. The earlier the Magistrates Courts and other lower courts realised that they are being used to subvert the Constitution the better,” the judge said.
He added: “It is as a result of incidents, such as this, that make the Judiciary to be opened to public ridicule and opprobrium of issuing black market orders of remand by courts, who ex-facie (on the face of it), lack the jurisdiction to try the offences being investigated.
“And these are, in my view quite unfortunate. The statutory agencies seem to side-track the obligations and rights created by the Constitution to protect citizens’ fundamental rights from being abused and violated,” the judge said.
Justice Kolawole spoke in a judgment he delivered yesterday in a fundamental rights enforcement suit filed by Abdulazeez, a serving senator and son of former governor of Adamawa State, Murtala Nyako.
The Chief Judge of the High Court of the Federal Capital Territory (FCT), Abuja, Justice Ishaq Bello had, on January 12, 2016, faulted the practice where Magistrates grant remand warrant in relation to cases on which they lacked the jurisdiction to entertain. He directed magistrates in the FCT Judiciary to desist forthwith from granting remand orders to investigating agencies in such instances.
Justice Kolawole, in the judgment Wednesday, did not comment on the constitutionality or otherwise of the provision of Section 293 of the Administration of Criminal Justice Act (ACJA) 2015, which allows magistrates to remand suspects on holding charge for a maximum of two weeks in situation where the prosecution required time to tidy up its case.
He said the practice was a “jaundiced interpretation” of the Supreme Court’s decision in the case of Lufadeju vs. Johnson in SC/247/2001, where the Supreme Court upheld the powers of the Magistrates Courts to issue remand warrants even where they lacked jurisdiction to try the offences charged.
Abdulazeez, who is currently standing trial (before another judge of the Federal High Court, Abuja), with his father and some others on money laundering related offences, was arrested by the EFCC on February 12, 2015 and released on February 17, 2015. His account, frozen by the commission since July 14 of 2014, is yet to be released till date.
The applicant argued that his detention for three days without being taken before any court was a violation of his right to personal liberty as guaranteed under Section 35 of the Constitution.
Justice Kolawole, who held that EFCC had a justifiable reason to have arrested the applicant, found that the detention of Abdulazeez by the EFCC for three days, without taking him before a court of competent jurisdiction was a breach of the provision under Section 35 of the Constitution.
He held that the decision by the EFCC to deploy its administrative powers to freeze the applicant’s bank account since July 14, 2016, without obtaining a court order to that effect, was a violation of the provision of the EFCC Establishment Act.
Justice Kolawole noted that the respondent (the EFCC) did not furnish his court with information of the outcome of its investigation of the allegations against the applicant, and whether or not charges have been filed against him.
He said the pendency of the suit before his court was not sufficient to restrain the EFCC from taking further steps in the case. He said all the respondent was required to do was to inform the court of its intention to file charges.
Justice Kolawole awarded N12.5million in exemplary damages against the EFCC and in favour of the applicant.
