Godwin Tsa, Abuja
The Abuja division of the Federal High Court has refused to hear the motion filed by detained publisher of Sahara Reporters and presidential candidate of the African Action Congress in the February 2019 elections, Omoleye Sowore, asking it to vacate its order allowing the Department of State Security Service (DSS) to detain him for 45 days.
Justice Nkeonye Maha refused to hear the application on the grounds that she does not have the powers to review the decision of a court of coordinate jurisdiction.
Justice Maha stated that doing so will amount to sitting on an appeal on a decision passed by a court of coordinate jurisdiction.
She equally refused the oral application for bail sought by counsel for Sowore, Femi Falana (SAN) on the grounds that she is functus officio.
The judge, consequently, referred the case to Court 10 presided by Justice Taiwo Taiwo who had granted the order in the first place.
Justice Taiwo had, after granting the ex parte order, adjourned the substantive case to September 21 for hearing.
However, in a motion on notice, Sowore had through his counsel, Falana, asked the court to set aside its order.
After a prolonged delay in the hearing of the motion, Falana had last week approached the court seeking a date for the hearing of the application.
Filed along with his application was an affidavit of urgency seeking a hearing of the suit on the ground that it “is one of fundamental importance that affects salient fundamental rights of the applicant herein”.
The motion, brought pursuant to sections 6 (6) (B), 35 and 36(4) of the 1999 Constitution and section 293 of the Administration of Criminal Justice Act, 2015, argues that ” the said order of the Honorable Court breached the fundamental right provisions of the 1999 Constitution (as amended).”
However, when the case came up for hearing, Falana informed the court of his motion which he said was ready for hearing.
But counsel for the DSS, OJ Oye, told the court that he was just being served in court with a reply on point of law by the applicant’s counsel and requested for an adjournment to respond to it.
According to him, “I have just been served with a copy of reply on point of law this morning in court by 9:15 am. It is a copious document with new facts and I need time to respond to it.”
Oye told the court that the idea behind serving him in court was an attempt to shut his client out of the case.
At this stage, Falana stood and informed the court that the respondent was served with other processes long ago.
He told the court that his client has been in detention for 20 days, and that he (Falana) has been trying to get a date for the motion to be heard.
Falana argued that once there is an ex parte order made against a person touching on his rights to his liberty, the court is bound to hear him within seven days.
He was, however, interrupted by Justice Maha, who sou moto (on her own) raised reservations about her powers to hear the application.
It was her position that she lacked the powers to set aside the ruling of Justice Taiwo coming from a court of coordinate jurisdiction.
She referred Falana to a portion of the order made by Justice Taiwo adjourning the substantive matter to September 21 for hearing.
Not deterred, Falana referred to the case law in Dr Onagoruwa vs IGP (1991) 5NWLR as well as order 26 rule 9 of the Federal High Court rules in persuading the court to review the order of Justice Taiwo.
In her ruling, however, Justice Maha maintained that she lacked the powers under the law to review the order of a court of coordinate jurisdiction.
Justice Maha, who relied on two Supreme Court authorities on the subject matter, held that “this court is not competent to review the order made by Justice Taiwo.
“I have no powers under the Constitution to sit as an appellate court on a decision of a court of coordinate jurisdiction. This case is, therefore, referred to Court 10 presided by Justice Taiwo,” the judge ruled.
She equally refused to hear an oral bail application by Falana on the grounds that she was functus officio.
Speaking at the conclusion of the court session, Falana said he will consult with Sowore before taking further action.
— Sahara Reporters (@SaharaReporters) August 28, 2019
In the said motion, Sowore is further contending that his detention for an initial 4-day period before the grant of the ex parte order is illegal by virtue of Section 35 of the 1999 Constitution (as amended).
“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 whilst the learned trial judge watched same in his chambers and not in the open court.
“The respondent/applicant was arrested on Saturday 3rd August, 2019 before the planned protest that took place on Monday 5th August, 2019 while he was already under the custody of the Applicant/Respondent.”
Falana further argued that “the persons who participated in the protests of 5th August, 2019 have been charged with unlawful assembly at the Magistrate Courts at Ebute-Metta, Lagos State and Calabar, Lagos State.
He submitted that “the Applicant/Respondent motion ex parte filed 5th August, 2019 did not disclose any fact capable of linking the Respondent /Applicant to any terrorism activity.
He added that, in the same vein, the motion filed 5th August, 2019 did not in the supporting Affidavit allude to facts linking the Respondents/Applicants to any terrorism activity.