A High Court of the Federal Capital Territory (FCT), Abuja came down hard on the Economic and Financial Crimes Commission (EFCC) Thursday, faulting its procedure of arrest and detention of suspects.
Justice Olukayode Adeniyi, in a judgment Thursday, noted that the EFCC has of recent, engaged in unwaranted violation of citizens’ rights through wrongful detention before investigation.
Justice Adeniyi advised the commission to adopt the practice in civilised societies where arrests are not effected until after investigation was concluded.
He said where arrest and detention was necessary; they must be effected in accordance with the provisions of the Constitution.
The judge spoke in a judgment he delivered Thursday in a fundamental rights enforcement suit filed by an associate of Ekiti State Governor, Ayodele Fayose, Abiodun Agbele, through his lawyers, Mike Ozekhome (SAN) and Olalekan Ojo
Justice Adeniyi, who faulted EFCC’s continued detention of Agbele since July 1 this year when he was brought from Lagos to Abuja, granted him bail, ordered his release and directed the EFCC to return all his seized property if after 21 days he is not charged to court.
The judge granted Agbele bail at N50million and one surety, who must be either a responsible Nigerian with verifiable means of livelihood or a director in either Federal agency or an agency of the Federal Capital Development Authority (FCDA). The surety is also to own a property in Abuja and must possess evidence of tax payment for the last three years.
Justice Adeniyi also awarded N5m compensation for Agbele, to be paid by the EFCC for his unlawful detention.
The EFCC had arrested Agbele in Lagos on June 28 and has kept him in its custody on the grounds that it was investigating him in relation to the N1, 299, 490,000 it said was found in a Zenith Bank account.
EFCC said the amount was proceeds of economic and financial crime in which Agbele “was found to have allegedly assisted in receiving and concealing in conspiracy with the former Defence Minister, Musiliu Obanikoro and the Governor of Ekiti State, Ayodele Fayose.”
EFCC said it obtained a remand warrant from a Magistrate Court in Lagos on June 30 to keep Agbele for 14 days, but moved him to Abuja on July 1. It later applied to a Magistrate Court in Abuja on July 13 for another remand warrant, two days after Agbele had initiated his suit.
Justice Adeniyi noted that the EFCC had detained the applicant in its custody in Abuja since July 1 till date, without taking him before a court, as required under sub-sections 4 and 5 of Section 35 of the Constitution.
He faulted the reasons given by the EFCC to justify its continued detention of the applicant to the effect that the remand order obtained by the EFCC from a Magistrate Court in Ogba, Lagos on June 30 cannot cover his detention in Abuja.
The judge also faulted EFCC’s claim that the applicant was still in its custody because he was unable to meet the conditions of the administrative bail it granted him.
Justice Adeniyi noted that EFCC’s decision to obtain a fresh remand order from a Magistrate Court in Abuja on July 13, and its objection to the applicant’s bail application were contrary its claim to have granted bail to the applicant.
The judge faulted the remand order obtained by the EFCC on July 13 in Abuja on the ground that it was obtained after Agbele had filed his suit on July 11, which was served on the EFCC on July 12.
He said the order was granted by the Magistrate under a wrong impression and that the EFCC acted in bad faith with the sole intention of foisting a state of helplessness on the court.
The judge was of the view that the right to personal liberty granted to every Nigerian citizen under Section 35(1) of the Constitution could only be curtail only in the six circumstances provided in paragraphs A to F of Section 35(1) of the Constitution.
He noted that the circumstance that is applicable to the Agbele case is that provided in Sub-section 1(c) of the Constitution.
The judge observed that by virtue of the constitutional provision, part of the conditions under which the Constitution permits the curtailment of a citizen’s fundamental right to personal liberty is where the curtailment is for the purpose of bringing such a citizen before a court in execution of the order of a court; or upon reasonable suspicion of his having committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing a criminal offence.
He noted that although the decision of the reasonableness of the suspicion upon which a suspect could be arrested could be determined by the arresting authority, such arrest cannot be at large.
“My finding therefore is that the two main grounds upon which the respondent had attempted to justify the continued detention of the applicant do not hold water in law. And as such, I must not hesitate to hold that the detention of the applicant by the respondent in her custody in Abuja from July 1 to July 13 in the first instance, without a valid court order constitutes a violation of the applicant’s fundamental human rights to personal liberty.
“My view, without mincing words, is that the act of the respondent, in rushing to a Magistrate Court to obtain a remand warrant to keep the applicant in custody after being served with the applicant’s originating motion for the enforcement of his fundamental rights is illegal and unconstitutional and clearly smacks of unbridled high-handedness and disdain of the authority of this court.
“Obviously, the act was aimed at undermining the instant suit and to present the court with a situation of fait accompli.
“This court, as indeed every court, committed to the sustenance of rule of law, justice and fairness in the fledging Nigerian democracy, without hesitation, hereby deprecate in strong terms, the action in the instant case, for the reason that the applicant had already ran to this court to seek refuge and protection of his already violated fundamental human rights, which include the right not to be inordinately and unlawfully detained, and the respondent, being aware of the instant suit, seeking to obtain a remand warrant from a Chief Magistrate Court, the said warrant shall be of no effect as far as this present action (case) is concerned. And this court shall give it no legal recognition.
“It is apposite at this time to remark that the court, particularly the Magistrate Courts must be extremely wary in allowing the security agencies to hide under the remand procedure prescribed in the Administration of Criminal Justice Act (ACJA) in order to secure somewhat, automatic remand warrant in order to keep citizens in detention indefinitely without justification.
“In my opinion, such remand warrant should only be granted in exceptional circumstances, where it is strong that the process of investigation makes it imperative to keep the suspect in detention, and as well as in line with the spirit of the Constitution.
“The obligation of the court to grant the remand warrant ought always to be balanced with the need to ensure the protection of the suspect’s constitutional right to personal liberty and presumption of innocent,” the judge said.
“He rejected the argument by the applicant’s lawyers that the provisions of sections 293 and 294 of the ACJA are inconsistent with the provision of Section 35(5) of the Constitution and unconstitutional.
By mu understanding, the power and procedure for remand of s suspect, made pursuant to the provisions of sections 293 to 299 of the ACJA are not at large or unfettered. They are clearly in consonant with the provisions of sections 35(1), (4) & (5) of the Constitution.
The judge who declared the EFCC’s continued detention of Agbele without a valid remand warrant unlawful and a violation of his fundamental right to personal liberty awarded N5m compensation in his favour to be paid by the EFCC.
“In the present case, the respondent’s conduct to continue to keep the applicant in detention without charging him to court and without taking him before a court of competent jurisdiction are prima facie acts of gross abuse of power, impunity, arbitrariness and arrogant disposition of Executive might.
“This disposition of the respondent must not only be condemned in very strong terms, but must also attract significant monetary damage in the circumstances,” he said.
The judge said his decision to award damages against the EFCC was in consideration of the facts of the case and “the fact that this court takes judicial notice of the frequency of brazen and arbitrary violation of the fundamental rights of hapless citizens by the officers and agents of the respondent.”
The judge, while granting bail to the applicant, noted that the offences for which Agbele was arrested were bailable.
He stated that the EFCC failed to substantiate its claim that the applicant will jump bail.
