Court Declines Sowore’s Request for Review of Detention Order

Alex Enumah in Abuja

Justice Nkeonye Maha of the Abuja Division of the Federal High Court, has declined to entertain an application by the convener of #RevolutionNow protest, Omoyele Sowore, challenging an order of the Federal High Court permitting his detention for a period of 45 days by the Department of State Services (DSS).

Justice Maha based her refusal on the grounds that she cannot review an order made by a court of equal jurisdiction and accordingly returned the file to the Chief Judge of the Federal High Court.

Justice Taiwo Taiwo had on August 8, 2019, ordered the detention of Sowore, the publisher of Sahara Reporters for 45 days.

Though the DSS had in an exparte application prayed for the court’s permission to keep Sowore for 90 days to enable it conclude investigation of alleged felony, the court, however, held that 45 days should suffice in the interim, adding that the agency can seek another order at the expiration of the first if it was yet to conclude within the 45 days given.

Dissatisfied with the decision of the court, Sowore, on August 9, filed an application requesting the court to set aside the ex parte order, which permitted the DSS to keep him in custody for a period of 45 days.

In a Motion on Notice, brought pursuant to sections 6 (6) (B), 35 and 36(4) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, Section 293 of the Administration of Criminal Justice Act, 2015 and under the jurisdiction of the Court, Sowore asked the court to vacate the order on the grounds that the order was made in violation of his fundamental human rights.

The motion filed by Mr. Femi Falana (SAN), was predicated on 18 grounds and supported by a 24-paragraph affidavit deposed to by one Marshall Abubakar.

When the matter was called, Sowore’s lawyer, Falana, urged the court to abridge the time and hear the application before the expiration of the 45 days.

While submitting that the DSS has no power, under the law, to detain his client, Falana said the court will be doing justice by hearing the application before the expiration of the 45 days.

Falana argued that Justice Maha has the powers, under the law to review the decision of Justice Taiwo and cited several decisions of superior courts to buttress his submissions.

He further submitted that Order 26, Rule 9 of the Federal High Court procedural rule empowers the court to hear the application.

However, Justice Maha, in a short ruling said Justice Taiwo had, in his order, made on August 8, granted the DSS leave to hold Sowore for a period of 45 days, adding that, by the order, the return date in the matter shall be September 21, 2019.

“This means that this suit is adjourned till September 21 for hearing. This court cannot review the decision of a court of coordinate jurisdiction.

“I make an order, returning this case back to Court 10, before Justice Taiwo for the matter to be heard by him,” the judge held.

Part of the grounds on which the application was predicated is that “that said order breached the fundamental right provisions of the 1999 Constitution (as amended).

Falana also argued that “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 while 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 protest that took place on Monday, August 5, 2019 while he was already under the custody of the applicant/respondent.”

Other grounds canvassed by Falana were that the motion ex-parte was predicated on suppression and misrepresentation of material facts, adding that it constitutes a gross abuse of the process of court.

The senior lawyer stressed that the motion exparte filed on August 5, 2019, did not disclose any fact capable of linking Sowore to any terrorism activity.

He further argued that the order was based on a wrong presumption and mistake that the complaint against the respondent therein relates to terrorism.

“That by virtue of Section 293 of the Administration of Criminal Justice Act, 2015, an application for the remand of any suspect is to be made before a Magistrate Court,” Falana argued. The DSS had on August 6 through an exparte application sought an order of court to detain

Sowore, the presidential candidate of the African Action Congress in the February 2019 election for a period of 90 days to enable them conclude its investigation of alleged act of treason and terrorism.

Sowore was arrested in the early hours of a Saturday in a hotel in Lagos by men of the DSS on account of the #RevolutionNow protest, which he had spearheaded.