•Vice President Atiku Abubakar Photo: Sun News Publishing

National Index

The quest of Vice President Atiku Abubakar to contest next year’s presidential election received a boost Tuesday when a Lagos High Court declared the controversial Economic and Financial Crimes Commission (EFCC) report on the Petroleum Technology Development Fund (PTDF), null and void.

The court, presided over by Justice Inumidun Akande, also set aside the report of the Bayo Ojo administrative panel which acted on the EFCC report. Also dismissed is the Federal Government gazette on the PTDF probe, with the court describing it as having no legal foundation.

The court ruling vacates the purported indictment of Otunba Oyewole Fasawe and others listed in the Federal Government Gazette on the PTDF, including Atiku. With the ruling, the vice president is freed of any legal encumbrance in his quest to contest the 2007 presidential election.

In a judgment that took her one hour 54 minutes to deliver, Justice Akande also ordered the EFCC to pay N5million damages to Fasawe, who had challenged his indictment by the Ojo panel.
Otunba Fasawe had approached the court to complain about the abridgement of his fundamental rights by the EFCC which detained him between September 29 and December 20, 2005. He also complained that the Ojo panel abridged his fundamental rights by indicting him without giving him fair hearing.
The court granted his requests on both complaints.

Specifically, the court set aside the indictment of Fasawe by the Federal Government based on the report of the administrative panel. The court ruled that the Federal Government appropriated the functions of the judiciary with the Ojo panel. It also ruled that the EFCC report on which the Federal Government based its decision to indict Fasawe was null and void.

According to Justice Akande, there is nothing in the Act setting up the EFCC that grants it the power to submit its report to the President. The EFCC, the court said, is empowered by its Act only to prosecute a case in court with its finding. By submitting the report to the President, the court said the EFCC contravened the law setting it up. On that account, it set aside the anti-graft agency’s report.

The court also set aside the administrative panel report on the same account. It ruled that the President lacked the power to exercise judicial authority which is what he did with the EFCC report.
The Federal Government gazette which was published on the basis of the Bayo Ojo Panel Report was also set aside by the court. The court ruled that the gazette had no legal foundation since the EFCC and administrative panel reports on which it was based have been set aside.

Ruling on the complaint of Otunba Fasawe over his three month detention, Justice Akande said it was illegal for the EFCC to detain the applicant or anybody for that matter. She said the EFCC was only allowed by its Act to arrest and prosecute; a power which does not include the detention of persons. The court explained that where there is need to detain anybody for the purpose of investigation, the EFCC will require court orders to so detain. In the case of Fasawe, this was not obtained for the three months for which he was held in Lagos and Abuja.

The court awarded Fasawe N5million as damages to be paid by the EFCC.
This is the second court judgment that establishes perceived inequities in the handling of the PTDF probe by the Federal Government.
In a ruling delivered on October 20,2006 in a case filed by Mr. Umar Pariya, Personal Assistant to the Vice President who was indicted by the Ojo panel, Justice Goodluck of an Abuja High Court ruled that the panel was not an administrative panel as conceived by the 1999 Constitution. He ruled that the panel was only an "investigative panel" which lacked the power to "abridge" the right of the applicant, Umar Pariya. "The point being made here is that the administrative report is advisory or recommendatory. It envisages that further steps will be taken by another body other than itself," the court declared on the judicial status of the Ojo panel.

The ruling on the Fasawe case has vacated the purported indictment of Vice President Abubakar which could have stopped him from contesting the 2007 presidential election.
Mr. Niyi Akintola (SAN), a member of Abubakar’s legal team challenging his purported indictment said with the court ruling, the purported Federal Government gazette never existed. "What it means in law is that the gazette never existed and the Vice President was never indicted. It means the whole exercise of indictment is a nullity. The Vice President is free and by law, has always been free to contest the 2007 presidential elections."