The Department of State Services (DSS) yesterday failed to produce Managing Director of Capital Oil and Gas Limited, Ifeanyi Ubah, as ordered by Justice Mohammed Idris of the Federal High Court in Lagos.
It instead filed a preliminary objection challenging the courtâ€™s jurisdiction to entertain Ubahâ€™s suit.
Its counsel, Peter Oluremodu, said Ubah was not produced because there was an order to detain him for 14 days issued by a Federal Capital Territory High Court.
He said the DSS obtained the order in line with the provisions of the Administration of Criminal Justice Act (ACJA) 2015.
Justice Idris had on May 9 ordered the DSS to produce Ubah in court to show because why he should not be released unconditionally.
But, Ubahâ€™s lawyer, Raphael Oluyede, urged the judge to hold that the DSS violated his order by not producing Ubah in court yesterday.
He said the FCT High Courtâ€™s order was obtained to frustrate Justice Idrisâ€™ order, adding that it amounted to a challenge of the courtâ€™s majesty.
â€œThe respondents have not shown cause as why they failed to comply with your lordshipâ€™s order. Instead, they took steps to subvert the order. They acted in contempt of that order.
â€œThe court in Abuja was not informed about the order to produce him in Lagos. Their preliminary objection is not relevant to the consideration of whether they have obeyed the order to produce him.
â€œI urge your lordship to consider the dignity of the court as paramount and to order Ubahâ€™s unconditional release,â€ he said.
Oluyede said Ubah was first arrested by the Economic and Financial Crimes Commission (EFCC) on March 19 and was released on April 14, after three weeks in detention.
He said Ubah was â€œcoercedâ€ to sign a document acknowledging indebtedness to the Nigeria National Petroleum Corporation (NNPC) and to pledge some of his assets.
He said EFCC also forced him to withdraw a fundamental rights suit he filed before he was released.
He said after Ubahâ€™s release, he approached the court again to stop his re-arrest.
Oluyede said when the DSS invited Ubah, he wrote the agency about his pending suit.
The lawyer said the DSS arrested his client despite being told about the suit.
He accused the DSS of abusing its powers, and urged the court to hold that Ubahâ€™s detention was contemptuous.
Ruling, Justice Idris held that it would be wrong for him to order for Ubahâ€™s release since a court of coordinate jurisdiction had issued an order that he be detained for 14 days.
Justice Idris said his records show that the DSS was served with his order on May 10.
â€œIt appears that on the same date (May 10, 2017), the fourth and fifth respondents (DSS and its Director-General) obtained from an FCT High Court an order allowing them to detain the first applicant (Ubah) in their custody for an initial period of 14 days pending the completion of investigation.
â€œIt is clear that there is a direct conflict between the order of this court and the order of my learned brother Y. Haliru J. A conflict situation has been created. It is sad and unfortunate.
â€œCourts of coordinate jurisdiction have been cautioned against situations like this. I will in the circumstances of this case and the pronouncements of the learned law lords of the Supreme Court, act ex abundanti cautela (Latin phrase for â€˜out of abundant cautionâ€™).
â€œI will not make any order that will have the effect of neutralising the orders made by the FCT High Court. There must be discipline in the law. I insist on discipline in the law.
â€œIn the light of the orders of the FCT High Court made on the 10th of May 2017, I will not make an order for the release of the applicant.
â€œSince the parties in this case have been served and the matter had been adjourned till the 18th day of May 2017, I shall adjourn till the 18th day of May 2017 when the substantive suit and all objection on jurisdiction will be taken together. This is the order of the court.â€
Ubah prayed the court to compel DSS release him from its custody.
The EFCC, the DSS Director-General, NNPC and the Asset Management Corporation of Nigeria (AMCON) are among the respondents.
The DSS arrested Ubah over alleged â€œeconomic sabotageâ€ and â€œillegal sale of petroleum products stored in his tank farm by the NNPC.â€
â€œSo far, it has been established that the products stolen amount to over N11billion,â€ the DSS said in a statement.
In a supporting affidavit to Ubahâ€™s application, Capital Oilâ€™s Secretary, George Oranuba, said the arrest was over allegations made by the NNPC and AMCON, which were already subject of a lawsuit.
Oranuba said a â€œthroughput agreementâ€ between Capital Oil and NNPC allows for â€œconversion and diversion of products by â€˜operatorsâ€™ so long as the operator is prepared to re-deliver the products within seven days of demand by the productâ€™s owner or to pay a penalty for non-re-deliveryâ€.
According to him, the failure to re-deliver was a â€œmereâ€ breach of contract, which can be remedied by the payment of penalty to the owner, and was not a criminal act for which Ubah should be arrested.
â€œThe throughput agreement expressly states that any penalty due for non-re-delivery is to be treated as a debt and I verily believe that law enforcement agencies are not allowed to operate as debt collectors,â€ the deponent said.
Oranuba also said NNPC was indebted to Capitol Oil in â€œexcess of N13billionâ€, yet the company did not call law enforcement agencies to collect the debt.