In documents filed on his behalf by human rights activist and Senior Advocate of Nigeria(SAN), Mr Femi Falana, Sowore contended that the DSS was not one of the law enforcement agencies recognised and listed in Section 40 of the Terrorism Prevention Act as amended.
“Although we are not unaware that the Department of State Service (DSS) is listed in Section 40 of the Terrorism Prevention Act, we submit that the DSS is not a juristic person having not been created by any Act of the National Assembly,” a suit filed at a Federal High Court in Abuja read.
Sowore stated that the fact that the SSS and DSS were used interchangeably in the country has not conferred legal status on the Service.
According to him, the motion ex parte for his arrest was filed by the SSS and not DSS and as far as the law is concerned, the SSS has no power to substitute itself for the DSS.
The #RevolutionNow protests convener further denied DSS reports linking him to any terrorist activity.
He said he has never been involved in any terrorist activity and there was no evidence whatsoever linking him to same.
In specific response to the mass protest tagged “Revolution Now’’ which took place in some cities across the country on August 5 in his absence, Sowore said there was no reported attempt to violently topple the government in Nigeria.
“The use of the word ‘revolution’ is not a criminal offence in Nigeria. Since a revolutionary change of government requires the complete overhaul of the legal and social order, the August 5 protest is not a revolution in the eye of the law,” the suit added.
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
SUIT NO: FHC/ABJ/CS/915/2019
STATE SECURITY SERVICE )…….. APPLICANT/RESPONDENT
OMOYELE SOWORE )……….. RESPONDENT /APPLICANT
RESPONDENT/APPLICANT’S REPLY ON POINT OF LAW
I, ABUBAKAR MARSHAL, male, adult, Nigerian citizen of 22 Mediterranean Street, Imani Estate, Off Shehu Shagari Way, Maitama District, Abuja do solemnly make oath and state as follows;
- That I am a Legal Practitioner in the Law Firm of Falana and Falana’s Chambers, Solicitors to the Respondent / Applicant herein.
- That by virtue of the above, I am familiar with the facts of this case
- That the Respondent / Applicant is currently yin the detention of the Applicant / Respondent and as such he is unable to depose to this affidavit.
- That I have the consent and authority of the Respondent / Applicant as well as that of my employer to depose to this affidavit.
- That on the 20th and 21st August, 2019 at the hour of 13:00 hours O’clock at the Department of State Security Services Headquarters, Aso Drive, Abuja the Respondent / Applicant informed me of the following facts which I verily believe as follows:
- That he has read the Counter Affidavit of Godwin Agbadua, Esq of the Legal Services Department, National Headquarters of the Applicant / Respondent.
- That Paragraphs 4 (ii- xxiii) of the said Counter Affidavit are untrue.
- That in specific response to Paragraph 4 (IV) he has never been involved in any terrorist activity and there is no evidence whatsoever linking him to any terrorist activity.
- That in specific response to paragraph 4 (v-vi) the mass protest tagged “Revolution Now’’ took place in many cities across the Country on the 5th August, 2019 in his absence but there was no reported attempt to violently topple the government in Nigeria.
- That the armed operatives of the Applicant/Respondent who arrested him on August 2, 2019 searched his house, seized his telephones and detain him and subjected him to investigation without any court order.
- That on Tuesday, 2nd July, 2019 he met with Mazi Nnamdi Kanu, a British national in New York City, United States of America and at the end of the said meeting, they both issued a joint press statement. A copy of the said statement is hereto attached and marked EXHIBIT A. The Applicant/ Respondent did not know about the meeting until it was reported in Sahara Reporters, an online medium published by him.
- That contrary to the deposition in Paragraph (vii-xi) of the counter-affidavit, there was nowhere in EXHIBIT SSS1 where he expressed a desire to launch any violent attack or topple any government in Nigeria.
- That in further response to paragraphs 4 (vii-xii) he did not plan a coup with anyone but he mobilized the Nigerian people including students and youths, workers, market women and other oppressed people to influence the federal government, the 36 state governments and 774 local governments to address the crises of corruption, maladministration, mismanagement of the economy and insecurity.
- On August 5, 2019 the Applicant / Respondent claimed that it had the Respondent/Applicant in custody and boasted that it had foiled the Revolution. In the evening of the same date, the federal government issued a statement wherein it thanked the Nigerian people for not joining the Revolution Now protests.
- The present administration had promised to create one million jobs per annum, build one million houses per annum, end epileptic supply of electricity, end corruption and impunity and restructure the country, end insecurity and manage the economy in the interest of the Nigerian people. Apart from failing to address these problems, the Muhammadu Buhari administration has compounded them in a manner that majority of Nigerians are frustrated.
- That aside the myriads of challenges noted above, insecurity has increased to the extent that thousands of people have been killed by terrorists, kidnappers, armed robbers, armed herders, armed soldiers and armed policemen without any hope in sight.
- That contrary to the deposition in Paragraph 4 (xiv) of the counter-affidavit, the Respondent / Applicant has never visited Dubai or any of the UAE Cities in his life and he has never received any money from any individual, group or organization for the purpose of removing the President or freeing any person through any unlawful means or for any other unlawful purpose whatsoever.
- That he has willingly availed the Applicant/Respondent of his local and foreign banks’ account details. In the course of the said investigative interviews of the 7th and 8th August, 2019, officials of the Applicant/Respondent told him that they could not believe that he does not have million of Naira in his accounts.
- That due to the refusal of the Applicant/Respondent to obey the court orders for the release Sheikh Ibraheem El-Zakzaky and his wife from unlawful custody his supporters have been protesting against the refusal of the Federal Government to abide by the said orders.
- That like million other persons worldwide the Respondent / Applicant has called on the federal Government of Nigeria to obey the court order and release the said Sheikh Ibraheem El Zakzaky and his wife from custody.
- That contrary to the assertion in paragraph 4 (xvi) he has never held any meeting or consultations with members of the Islamic Movement in Nigeria.
- That on the contrary, the leading members of the ruling party met with the said leader of the Islamic Movement in Nigeria several times before this arrest in December 2015. The members of the ruling party or operatives of the Applicant / Respondent have also been meeting him regularly in custody.
- That the Applicant/Respondent completed his interrogation based on the information which he made available as the investigators have no information whatsoever. Since the completion of the investigation on August 8, 2019, he has been idle.
- That the Respondent / Applicant needs treatment on his ankle which was seriously strained during the midnight invasion of his abode on the said Friday 2nd August, 2019 by the armed agents of the Applicant/Respondent.
- That his pedigree as a pro-democracy activist, social crusader and front line opinion molder is unblemished and he is one of the activists who played vital role in restoring democracy in Nigeriia in May 1999.
- That on August 4, 2019, he and other organizers of the peaceful protest released “the rules of engagement” where they said that, “We eschew all forms of violence. No protester should throw any object as little as stones or attack any security officials. We are aware of their intent to provoke the mass unduly by using undue tactics and sponsored agents, so as to give the protest a bad name. We encourage all Nigerians to remain calm as we are ready to fight these injustices to a logical conclusion”. Attached hereto and marked EXHIBIT H is a copy of the said news press release of the rules of engagement.
- That contrary to the averments in paragraph 4(xvii-xxii) of the counter-affidavit, the protests actually held on the 5th August, 2019 and none of the persons who took part in the said protests engaged in any form of violence or attack.
- The Respondent/Applicant further avers that the agents of the State unleashed violence and mayhem on peaceful protesters. Attached hereto and Marked EXHIBIT H1 and H2 are documents confirming the assertion.
- That the persons who were arrested and charged for participating in the peaceful protest of 5th August, 2019 have since been released on bail.
- That even President Muhammadu Buhari was once tear-gassed by the Applicant/Respondent and the Nigeria police force for protesting against electoral malfeasance. Attached herewith and marked EXHIBIT I. A copy of a newspaper Report on how the Applicant/Respondent and the police tear-gassed General Muhammadu Buhari and other political leaders in the country.
- That President Muhammadu Buhari and other leaders of the ruling party had led street protests in the past which the Applicant/Respondent claimed were planned to overthrow the federal government. Attached hereto and marked EXHIBIT J and J1 are documents confirming the assertion.
- That President Muhammadu Buhari led protest marches after each consecutive loss of the presidential elections won by Messrs Olusegun Obasanjo, Yar’adua and Goodluck Jonathan of the PDP in 2003, 2004 and 2014 but was neither arrested nor charged for planning to overthrow the government.
- That he is not a coup plotter like the military officers who toppled elected governments in Nigeria in January 1966 and December 1983 but who were never arrested and prosecuted by the Federal government.
- That based on the misleading advice of the Applicant/Respondent, any political leader who criticized the federal government has always been accused of engaging in sabotage, treason, treasonable felony or terrorism. Individuals and bodies that have been so accused include:
- The Nigeria Labour Congress under the leadership of Comrade Adams Oshiomole , the current Chairman of the APC had been accused of sabotaging the economy for protesting against the incessant increase in the prices of fuel under the former Olusegun administration.
- In 2010, the Jonathan administration accused former Vice President Atiku Abubakar of treason for saying that those who make peaceful change impossible make violent change inevitable.
- In 2010, the Jonathan administration accused ex-military president Ibrahim Babangida, Alhaji Atiku Abubakar and other PDP leaders of sponsoring the bomb blast which occurred at Abuja and killed 16 people and injured several others. The Applicant/Respondent even arrested and detained Chief Raymond Dokpesi. But the alleged sponsors of the bomb blast were not prosecuted due to lack of evidence to substantiate the monstrous allegation emanating from the Applicant/Respondent. In 20111, General Buhari was accused of sponsoring the political violence.
- In 2014, the Jonathan administration accused the Academic Staff Union of Universities (ASUU) of sabotage for going on strike to demand for adequate funding for public universities.
- In May 2015, the federal government warned those who were planning a coup de tat to desist from the plot.Even though the Chief of Army Staff, General Tukur Buratai denied the involvement of the Nigerian Army in the planned coup but the alleged coup plotters have not been arrested and prosecuted.
- In 2015, operatives of the Applicant / Respondent and armed soldiers invaded the Lagos State Secretariat of the APC and carted away computers. At the end of the invasion the Applicant / Respondent claimed that it had found evidence of the planned rigging of the 2015 general election but the leaders of the APC were not charged with any offence.
- In 2014, the Jonathan administration filed terrorism charge against the 12 leaders of the APC in Ekiti State for frustrating the alleged plan of the PDP-led government to rig the 2014 governorship election in Ekiti State but the charge was withdrawn due to lack of evidence.
- In 2018, the federal government claimed that it had credible evidence of plans to sabotage Buhari’s administration but it has not charged the so called saboteurs with treason or treasonable felony.
- In 2019, the Buhari administration has accused Ahaji Atiku Abubakar of treason Alhaji Abubakar has reacted by dismissing the reckless allegation.
- The federal government has either blamed disgruntled Nigerian politicians or the former regime of the late President Mummar Gaddafi for killings by armed herders but the Buhari administration has not charged any of the disgruntled politicians with any offence. Even the 3,000 herders arrested and detained for murder and sundry offences have not been arraigned in any court in Nigeria.
- After the 2019 general election the federal government also alleged that defeated candidates were sponsoring bandits and herdsmen to prevent the inauguration of the President but the so called sponsors of violence have hot been arrested and prosecuted by the Applicant / Respondent.
- That I, ABUBAKAR MARSHAL do solemnly and sincerely declare that I make this solemn declaration conscientiously believing the content to be true and correct by virtue of the provision of the Oaths Act, Cap 01, Laws of the Federation of Nigeria, 2004.
SWORN TO AT THE REGISTRY OF THE
FEDERAL HIGH COURT OF NIGERIA, ABUJA,
THIS________DAY OF AUGUST, 2019
COMMISSIONER FOR OATHS
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
SUIT NO: FHC/ABJ/CS/915/2019
STATE SECURITY SERVICE )…….. APPLICANT/RESPONDENT
OMOYELE SOWORE )……….. RESPONDENT /APPLICANT
RESPONDENT/APPLICANT’S WRITTEN SUBMISSION ON POINT OF LAW
1.01 In the address of the Applicant / Respondent 3 issues have been formulated. On behalf of the Respondent / Applicant we hereby react to them seriatim.
- WHETHER having regards to the circumstances of this case vis-a-vis the facts deposed to in the counter affidavit as well as the relevant statutes, the Applicant / Respondent was right to approach this Honourable Court under the Terrorism Amendment Prevention Act, 2013.
- WHETHER the Applicant / Respondent was right to approach the Court through an ex parte application for the detention of the Respondent / Applicant.
- WHETHER or not the grant of the Order for the detention of the Applicant is an infringement upon the fundamental human rights.
2.00 ISSUE ONE: WHETHER having regards to the circumstances of this case vis-a-vis the facts deposed to in the counter affidavit as well as the relevant statutes, the Applicant / Respondent was right to approach this Honourable Court under the Terrorism Amendment Prevention Act, 2013.
2.01 It is the case of the Applicant / Respondent that there is reasonable suspicion that the Respondent / Applicant has committed treason, treasonable felony and terrorism. With respect, the offences of treason and treasonable felony are provided for under Sections 37 and 41 of the Criminal Code Act while terrorism is covered by the Terrorism (Prevention) Act. But in the affidavits and written addresses it has not been proved that the Respondent / Applicant committed any terrorism offence or contravened any provision of the Criminal Code Act.
2.02 It is our submission that the Applicant / Respondent lacks the power to arrest, investigate and prosecute the Respondent / Applicant or any person whatsoever under the Terrorism Prevention Act as amended. The Applicant / Respondent is not one of the law enforcement agencies recognized and listed in Section 40 of the Terrorism Prevention Act as amended. Although we are not unaware that the Department of State Service (DSS) is listed in Section 40 of the Terrorism Prevention Act we submit that the DSS is not a juristic person having not been created by any Act of the National Assembly.
2.03 The fact that the SSS and DSS are used interchangeably in Nigeria has not conferred a legal status on the DSS. In any case the motion ex parte herein was filed by the SSS and not DSS. As far as the law is concerned, the Applicant / Respondent has no power to substitute itself for the DSS. In Anya v. Iyayi (1993) 7 NCLR 290 at 314-315 the Supreme Court held:
“I agree with Mr. Femi Falana learned counsel to the respondents that even if the Head of State acting also as the Visitor of the 4th Appellant, was acting under and by virtue of the University of Benin law he can only exercise powers under Section 14 of that law. He cannot also as submitted by Dr. Odje S.A.N. be acting as Head of State. The two powers and circumstances which are mutually exclusive are not interchangeable. There is no doubt that the powers of Head of State are distinct and separate from those of a Visitor. The powers were intended to be separate from those of a Visitor. The powers were intended to be separate and separable and to be exercised under separate circumstances and conditions. The powers of the Visitor are expressly conferred by law.”
2.04 Furthermore, the State Security Service established pursuant to Section 2 of the National Security Agencies Act has not been empowered to arrest, investigate and prosecute the Respondent / Applicant or any person whatsoever. Unlike the Nigeria Police Force, the Independent Corrupt Practices and Other Related Offences Commission, Economic and Financial Crimes Commission etc which are clothed with powers to arrest, detain and prosecute suspects the Applicant / Respondent has not been so empowered to arrest, investigate and prosecute any person. In Gbenga Komolafe v Attorney-General of the Federation NIPLR 258 it was held that the SSS Cell is unknown to law.
2.05 Assuming without conceding that the Applicant /Respondent has the power to operate as a law enforcement agency under the law we submit that section 27 (3) of the Terrorism Prevention Amendment Act, 2013 clearly provides that the ex parte order by a Judge under subsection 1 thereof shall authorize an officer to arrest a suspect. In other words, the ex parte order is like a warrant of arrest. But in this case, the Applicant/Respondent arrested the Respondent/Applicant without a warrant of arrest, detain him for 6 days before obtaining an order ex parte on August 8, 2019.
2.06 In the reply to counter-affidavit the Respondent/applicant has said that the officers of the Applicant/Respondent did not obtain any order of this Honourable Court before searching his abode and before subjecting him to investigation and seizing his telephones. We submit that the said search and investigation are illegal as they violate Section 24 of the Act which provides as follows:
(1) “An officer of any duly authorized enforcement law or security agency may apply exparte to the court for the issuance of a warrant for the purposes of a terrorist investigation.
(2) The court may issue a warrant authorizing an officer of any law enforcement and security agency to- (a) enter the premises or conveyance specified or described in the warrant for terrorist investigation (b) search the premises or conveyance and any person found therein; and (c) seize and detain any relevant material found therein.
(3) The court shall not issue a warrant under subsection (2) of this section unless the court is satisfied that (a) the warrant is sought to prevent the commission of an offence under this Act or to prevent the interference in an investigation under this Act; (b) the warrant is used for the purpose of a terrorist investigation; (c) there are reasonable grounds for believing that there is a person or material on the premises or conveyance which may be relevant to the terrorist investigation; or (d) the person being sought is preparing or about to commit an offence under this Act.(Emphasis ours).
- In a similar vein, Section (1) provides: “Where a person is arrested under reasonable suspicion of having committed any offence under this Act, the relevant law enforcement or security officer may direct that the person arrested be detained in custody for a period not exceeding forty-eight hours from his arrest, without having access to – (a) any person other than a medical officer of the relevant law enforcement or security agency or his counsel; or (b) any phone or communication gadget.”
- There is no evidence that the statutory provisions were complied with by the Applicant/Respondent in this case. Clearly, the provision of Section 28 (1) above is in conformity with Section 35 of the 1999 Constitution as amended. Aside the fact that the depositions contained in the various affidavits and Counter affidavits filed by the Applicant/Respondent cannot by any stretch of the imagination be said to disclose a fact upon which “reasonable suspicion of having committed any offence under this Act” Instead of providing evidence to prove that that the Applicant/Respondent complied with the above provisions of the law the facts contained in paragraphs 4 (iii), (iv),(xiii), (xviii) of the Counter affidavit of the Applicant/Respondent are assumptions and conjectures which are not based on facts.
- Graciously, the Applicant/Respondent had at paragraph 3.20- 3.21 referred to the case of OTERI V OKORODUDU AND ANOR. (1970) LPELR-2474 (SC) on the definition of reasonable suspicion. The term “reasonable suspicion” does not exist in vacuo. It has to be based on facts. No doubt, the Applicant/Respondent has used the term loosely without making available the facts on which this Honourable Court can come to a definite conclusion. By arresting the Respondent/Applicant on Friday 2nd August, 2019 and keeping him far beyond the 48 hours permissible, the Applicant/Respondent has breached Section 35 of the 1999 Constitution as amended and section 28 (1) of the Terrorism Amendment, Act, 2013 .
- In defending the illegality the Applicant/Respondent has said that the Respondent/Applicant has committed a capital offence and that therefore section 35(4) is not applicable. But in the written addresses of the Applicant/Respondent the attention of this Honorable Court has not been drawn to any section of the Terrorism Act breached by the Respondent/Applicant. But since the allegation against the Respondent/Applicant is that he formed an intention to remove the President that is treasonable felony covered by section 41 of the Criminal Code Act. With respect, that is not a capital offence. The Applicant/Respondent wants this Honourable Court to believe that the Respondent/Applicant has engaged in terrorist activities by planning to demonstrate against the federal government. With respect, section 3 of the Terrorism Prevention Act has excluded protests and strikes from terrorist activities.
- In JONES ABIRI V SSS SUIT NO FHC/ABJ/CS/698/2018, the Respondent had arrested the Applicant at his residence in Yenagoa, Bayelsa state for publishing news report the respondent found offensive. He was detained and kept incommunicado for a period of about two years. In trying to justify the unlawful incarceration the Respondent had argued that the Applicant was arrested on reasonable suspicion of having committed a terrorist offence contrary to the Terrorism Prevention Amendment Act, 2013 and that releasing him would jeopardize national security. This Honourable Justice Dimgba discountenanced the submission and held that the arrest and incarceration of the Applicant without due process of law violates salient provisions of the 1999 Constitution and awarded damages of ten million naira.
- In the press statement which was publicized by the Respondent/Applicant herein there is nowhere where the Respondent/Applicant “stated that they have both agreed on the strategy to achieve their goal of changing the government through violence” as the Applicant/Respondent has falsely misrepresented. For the avoidance of doubt, the Respondent/Applicant had spoken the following words; “, “We met to talk about things we’ve both been passionate about but on a different plane and we respect those boundaries but we’ve had very useful conversations today so that everybody that is aspiring for a fair and just society can come together and rise up now and bring an end to the sorrow and suffering and the domination and the oppression that has become almost synonymous with our generation and our genes in Nigeria. Those of you out there who think we have big differences and that we can’t talk, know that when people have revolutionary minds, these minds meet and bodies eventually meet.”
- At paragraph 3.0 of its written address in support of the Counter Affidavit, the Applicant/Respondent had continued the deliberate falsehood, outright lies and distortions upon which the ex parte order detaining the Respondent/Applicant was sought and obtained. The principle of law is well settled my lord that the contents of a document speaks for itself. To that extent the press statements issued by the Respondent/Applicant and his colleagues cannot be ignored by this Honourable Court. The Supreme Court of Nigeria in the case of OGUNDELE V. AGIRI (2010) 9 WRN 1 AT 7 held thus;
“Documents when tendered and admitted in court are like words uttered and do speak for themselves. They are more reliable and authentic than words from the vocal cord of man as they are neither transient nor subject to distortion and misinterpretation but remain permanent and indelible through the ages….”
Since the Applicant / Respondent has acted ultra vires and mala fide we urge this Honourable Court to set aside the order ex parte made on August 8, 2019 as same was anchored on the erroneous impression that the Applicant / Respondent is authorized by the Terrorism (Prevention) Act to arrest and investigate the Respondent / Applicant.
2.14 It is well established law that the courts will construe a legislation affecting the personal liberty of a citizen strictly and scrupulously. In Dr. Bello Ransome-Kuti v. Attorney-General of the Federation NPILR 154, the Applicant was arrested on May 19, 1992 at his house in Lagos. When the applicant challenged his detention the Respondent produced a detention order dated May 20, 1992. Notwithstanding the ouster of court’s jurisdiction, the Lagos State High Court entertained the matter on the ground that the detention of the Applicant was faulty. According to Owobiyi J. (as he then was)
“Having regard to what I have stated in the foregoing, I hold therefore that the arrest of the Applicant – Dr. Beko Ransome-Kuti on the 19th day of May, 1992 at 4:15am at his house at 8, Imaria Street, Anthony Village, Lagos in the circumstances described in his affidavit in support of this application is illegal, unlawful and unconstitutional and a violation of his fundamental rights. Anything that derives its existence or emanates from the illegal or unlawful arrest or predicated thereon is in itself illegal and unlawful and therefore null and void and of no effect whatsoever. So that the detention order issued on the 20th day of May, 1992 under the hand of the Vice President of Nigeria consequent upon the illegal arrest of the Applicant is unlawful and I so hold. There can be no question of illegal arrest and lawful detention. Both crumble together. I am supported in this view by the dictum of Lord Denning in the famous case of Macfoy v. U.A.C. Ltd. (1962) A.C. 152 where with clarity of thought the learned Lord of Appeal pronounced thus at page 209-
‘If an act is void then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado. You cannot put something on nothing and expect it to stay there. It will collapse.”
2.15 The issue bordering on the detention of a citizen is fundamental since it involves the restriction of the citizens’ right to personal liberty. The importance of this right makes it incumbent on security agencies to follow any laid down procedure for with respect to the execution of detention orders. Since the SSS that applied for the order ex parte has done so on behalf of the DSS we submit that the order is liable to be quashed by this Honourable Court. In Kareem V. IGP (Nigeria Law of Heabes Corpus) [email protected] PARA A-H the Lagos State High Court (coram Odesanya J.) struck out the detention order signed by the Deputy Inspector-General of Police, Chief T. A. Fagbola on the ground that that only the Inspector General of Police and the Chief of staff of the Armed Forces can make an order pursuant to the Armed forces and Police (Special Powers) Decree No.24 of 1967; and it is not a power that can be delegated or exercised by their deputies.
2.16 In addressing issue two the Applicant / Respondent has submitted that “it is crystal clear that an application under the TPAA for a detention is by way of ex parte.” With profound respect, the Applicant / Respondent has not responded to our submissions that the ex parte order ought to have been sought and obtained before arresting and detaining the Respondent. Hence Section 27 of the TPPA provides that the detention Order shall be used to execute the arrest of a suspect. But we have shown that the Respondent was arrested on August 2, 2019 without a court order and that his house was searched without a search warrant.
2.17 We have also shown that there was no detention order to justify his detention from August 2-8, 2019. More importantly, we have show that the Applicant/Respondent is not one of the law enforcement agencies authorised by law ro enforce the provisions of the Terrorism Prevention Act and that the DSS is not a legal entity. Since the order ex parte obtained from this Honourable Court is based on the illegal arrest, illegal search and illegal detention of the Respondent/Applicant we urge this Honourable Court to resolve issue one against the Applicant / Respondent.
3.00 ISSUE TWO: WHETHER the Applicant / Respondent was right to approach the Court through an ex parte application for the detention of the Respondent / Applicant.
3.01 In their affidavits and written addresses the Applicant / Respondent has urged this Honourable Court to believe that the Respondent / Applicant committed terrorism on two grounds:
- That the Respondent / Applicant and IPOB leader, Mazi Nnamdi Kanu met and claimed that they “have got a strategy to change the Government”. He was by this act assisting and facilitating the activities of persons engaged in terrorism contrary to the Terrorism (Preventions) Act as amended.
- That the Respondent / Applicant’s statement that members of the proscribed Islamic movement in Nigeria would join him in bringing down the Government “shows that he is an accessory to act of terrorism under the Terrorism (Prevention) Amendment Act”.
3.02 With respect, the contents of the video cassettes dumped on this Honourable Court by the Applicant /Respondent do not support the baseless and misleading conclusions of the Applicant / Respondent. Indeed, the Applicant / Respondent did not reproduce any aspect of the statements of the Respondent / Applicant wherein he announced his plans to topple any government. Apart from not specifying the particular government which the Respondent / Applicant had planned to topple the Applicant/ Respondent has not disclosed to this Honourable Court the names of the member or members of the Islamic Movement in Nigeria who met with the Respondent / Applicant.
- In his Reply to the Counter Affidavit the Respondent /Applicant has reproduced the statement made by him with respect to the participation of the Shiites and not Islamic Movement in Nigeria. After all, after the proscription of the Islamic Movement in Nigeria the Federal government issued a statement to the effect that the Shiites have not been banned. To that extent, the statement that the Shiites would join the Revolution Now protests on August 5, 2019 cannot by any stretch of imagination be said to constitute an act of terrorism.
- Contrary to the submissions in paragraphs 3.02- 3.04 of the Applicant/ Respondent’s written address there was no place in EXHIBIT SS1 where the Respondent/Applicant mentioned IMN as the Applicant/Respondent had wrong claimed In the exhibit the Respondent/Applicant had said:
“People are waiting for us on Monday to change this country forever, infact, I just got words from Shiites who they said called off their protest, that it was some kind of arrangement but since we are going out to also include the release of their leader in pur in our protest, they would also join us on Monday. We are hearing from students, we are hearing from market women, we are hearing from lawyers, doctors everybody. All of them are tired of the leadership we have in Nigeria. I was just looking at twitter, Buhari twitted that some traditional leaders are here in Abuja to discuss security, can traditional rulers secure anybody? They can’t even secure themselves. But this is part of the packaging of lies so that we become comfortable and complacent until they come and stab you in your house.”
3.05 Sadly, the Applicant/Respondent has fraudulently distorted these factual statements that reflect the situation in the country today for very obvious reasons. At any rate, there is no law against organizing street protests. There is also no law or order banning Shiites from either protesting or practicing their religion and of exercising their constitutional rights. In fact, President Buhari has rightly advised the Shiites to protest peacefully and not violently. One is therefore amused at the proclivity of the Applicant/Respondent to criminalize protests in Nigeria.
3.06 At any rate, the Respondent/Applicant had deposed that he has never held any meeting with representatives of the IMN with a view to advancing their intention/purpose. And without prejudice to the foregoing, the Respondent/Applicant had also shown that there are indeed two judgments of this Honourable Court mandating the Applicant/Respondent herein to release Sheikh Ibrahim Elzakzaky, and that compliance with same has been the sole demand of the Shiites and millions of prodemocracy advocates and lovers of rule of law including the Respondent/Applicant. Since the Applicant/Respondent has not shown that the Shiites have been banned the submissions of the Counsel to the Applicant/Respondent are at variance with section 16 (4)of the Terrorism Amendment Act, 2013 which clearly provides:
(4) It is a defence for a person charged under subsection (3) of this section to prove that the organization had not been declared a proscribed organization at the time the person charged became or began to profess to be a member of the organization and that he has not taken part in the activities of the organization at any time after it has been declared to be a proscribed organization.
- Contrary to the misleading impression created by the Applicant/Respondent the protest in question was meant to be peaceful. Specifically the Respondent/Applicant and his comrades had issued a statement on 27 July, 2019 (EXHIBIT A) titled “rules of engagement” to the effect “We eschew all forms of violence. No protester should throw any object as little as stones or attack any security officials. We are aware of their intent to provoke the mass unduly by using undue tactics and sponsored agents, so as to give the protest a bad name. We encourage all Nigerians to remain calm as we are ready to fight these injustices to a logical conclusion.”
- Since the conclusions drawn by the Applicant / Respondent from the exhibits attached to the motion ex parte are faulty, misleading and erroneous we urge this Honourable Court to discountenance them in toto. In the circumstance this Honourable Court ought to resolve issue two against the Applicant/Respondent.
4.00 ISSUE THREE: WHETHER or not the grant of the Order for the detention of the Applicant is an infringement upon the fundamental human rights.
4.01 The Applicant / Respondent has submitted that Section 35(4) of the Constitution provides that a person accused of a capital offence can be detained beyond 48 hours without being arraigned in a court. This is not in dispute. But in this case, the Applicant / Respondent has not shown the section of the TPPA that shown that the Applicant / Respondent is being investigated for a capital offence. Not sure of the nature of the offence the Applicant / Respondent has not referred this Honourable Court to the particular section of the TPPA. Therefore, the case of Dokubo Asari v. FRN and Nonuju v. IGP cited by the Applicant / Respondent are totally irrelevant to the facts of this case.
- In the same vein the case of Lufadeju v. Johnson is not applicable to this case as the Police which arraigned the Respondents in the Chief Magistrate Court in Ikeja is a law enforcement agency recognized by the Police Act and the Lagos State Criminal Law. But in this case, the SSS has not been authorized the TPPA to arrest and prosecute the Respondent / Applicant. We therefore submit that the fundamental right of the Applicant / Respondent to personal liberty has been violated by the Applicant / Respondent. To that extent the order ex parte sought and obtained by the Applicant / Respondent ought to be set aside.
- No doubt, the Applicant/Respondent has capitalized on the use of the word “revolution” to criminalize the protests but revolution could be violent or non- violent, indeed revolution is a word with broad loose meaning in modern usage. Lord Denning MR it was that who said “English language is not an instrument of mathematical precision, if it were so; our literature would be poorer for it.” We wish to submit, without any fear of contradiction, that neither the Criminal Code Act nor the Terrorism Prevention (Amendment) Act has classified the demand for a revolution in Nigeria as a treasonable offence or terrorist activity. In very clear terms, the Respondent/Applicant had stated the venue of the planned protest, as the national stadium Lagos, the demands of the protesters were also listed (Exhibit H refers please). In fact, on the said 5th August, 2019, the protesters converged at the venue designated for the said protest, carrying placards and chanting demands in line with the demands above referenced. How on earth can this exercise of salient constitutional and fundamental right amount to treason or treasonable felony and or terrorism?
- In E.O. LAKANMI & ORS V. THE ATTORNEY-GENERAL (WEST) & ORS (1970) LPELR-SC.58/69 the Supreme Court categorically stated that the acts of January 1966 did not amount to a revolution but a rebellion. Speaking for the apex court Ademola J.S.C. said:
“We disagree with the Attorney-General that these events in January 1966 are tantamount to a revolution. As Chief Williams for the appellants puts it, quoting from the Shorter Oxford Dictionary, a revolution occurs when ”there is an overthrow of an established government by those who were previously subject to it” or ”where there is a forcible substitution of a new ruler or form of Government”. These, from the facts, did not take place in Nigeria in 1966 as the situation to which we have previously referred – a rebellion by some members of the Armed Forces – caused the Acting President, with the advice of the Council of Ministers in the absence of the Prime Minister, to hand over power to the Armed Forces. ..
The rebellion had been quelled; the insurgents did not seize power nor was it handed over to them. But the state of affairs in Pakistan to which The State v. Dosso (supra) refers is different. In Pakistan the President had issued a proclamation annulling the existing Constitution. There was a disruption of the Constitution and the national legal order by an abrupt political change not contemplated by the Constitution. Such a change is a revolution.”
4.05 In LAKANMI AND ANOR V. ATTORNEY-GENERAL, WESTERN STATE (1971:201) the court held that the republican constitution remained the supreme law of the federation and all laws were subjects to it except so far as by necessity, the constitution ceases to have effect. The Supreme Court upheld the submission of learned counsel for the appellants that the events of 4th January 1966 were not a revolution and consequently that the federal Military government was not a revolutionary government. If the violent change of government of 1966 was not a revolution but a rebellion it is submitted that the planned protests of August 5, 2019 is neither a revolution nor a rebellion but an exercise of the freedom of expression of the Respondent/ Applicant.
4.06 A week earlier, in an interview with the Arise News channel, the Respondent/Applicant had stated that “Nigeria needs revolution, not war”. This clearly distinguishes his call for substantial change from a call to violence. The Respondent//Applicant has used the word “revolution” contextually to mean “change for the better”. In 2006, when he founded Sahara Reporters. Respondent/Applicant stated that he would “revolutionise” the way news was being reported in Nigeria –– something he actually did. In the second republic the Shehu Shagari regime launched the “Green Revolution” to revolutionize the entire agricultural system of Nigeria. As far as the Applicant/Respondent is concerned, the Green Revolution was not introduced to overthrow the federal government Nigeria. Indeed, the Key Demands of the protesters were that; (1.) All governments must pay the N30, 000 minimum. (2) Abolition of tuition fees in universities and secondary schools. (3) Stop the killings in the country and sack all the incompetent service chiefs. (4) Stop all estimated billing by the power companies, provide pre-paid meters for free, and communities must have the right to audit the electricity bills they get, and review the licenses of all discos. (5) Free all political prisoners now, including El Zakzaky and his wife. (6) Employment for the youths.
- Section 1 of the Act clearly defines what amount to Terrorism. From the said definitions of terrorism it is crystal clear that the Respondent/Applicant and other organizers of the peaceful rallies cannot be said to have planned to engage in acts of terrorism or formed an intention to remove President Muhammadu Buhari from office.In 2011, General Buhari had urged Nigerians to be prepared for a revolution that was similar to the Egyptian one. In R v Agwuna (1949) 12 WACA 456, the members of the Zikist Movement had called for revolution in Nigeria under the colonial regime. In the course of the public lecture held at the Glover Hall in Lagos the defendant had asked Nigerians to stop paying taxes and that he was not bound by colonial laws. The defendant was not charged with treason or treasonable felony but with sedition under the Criminal Ordinance. The defendant was convicted because he had incited colonial subjects against the government. But in the case of ARTHUR NWANKWO V THE STATE (1985) N.C.L.R. 228 the provisions of the Criminal Code which provided for sedition and seditious publications were declared illegal and unconstitutional by the Court of Appeal on the ground that they constituted a violation of the fundamental right of Nigerian to freedom of expression.
- In the case of ANPP V IGP (2006) CHR 181, the plaintiff questioned the constitutional validity of police permit as a conditionality for rallies, marches and other public meetings in Nigeria. In her judgment delivered on June 25, 2005, the presiding judge, Chikere J. held that police permit was illegal and unconstitutional as it was inconsistent with sections 39 and 40 of the 1999 Constitution, as amended and Article 11 of the African Charter on Human and Peoples’ Rights Act (Cap A9) Laws of the Federation of Nigeria, 2004. According to the learned trial judge, “I am therefore persuaded by the argument of Mr. Falana that by the combined effect of sections 39 and 40 of the 1999 Constitution as well as Article 11 of the African Charter on Human and Peoples’ Rights, the right to assemble freely cannot be violated without violating the fundamental right to peaceful assembly and association.” Consequently, the court granted an order of perpetual injunction restraining the Inspector-General of Police “whether by himself, his agents, privies and servants from further preventing the Plaintiffs and other aggrieved citizens of Nigeria from organizing or convening peaceful assemblies, meetings and rallies against unpopular government measures and policies.”
- The epochal decision of the federal high court was upheld by the Court of Appeal in the case of IGP V ANPP (2008) 12 WRN 65. The Presiding Justice, Adekeye JCA (as she then was) asked “…how long shall we continue with the present attitude of allowing our society to be haunted by the memories of oppression and gagging meted out to us by our colonial masters through the enforcement of issuance of permit to enforce our rights under the Constitution?” On the fear that a rally might lead to a breach of the peace, her ladyship said that “our Criminal Code has made adequate provisions for sanctions against the breakdown of law and order so that the requirement of permit as conditionality to holding meetings and rallies can no longer be justified in a democratic society.”
- Having regards to the fact that Nigerians have the right to freedom of assembly and freedom of expression Adekeye JCA (as then was) had cautioned thus:
“A rally or placard carrying demonstration has become a form of expression of views on current issues affecting government and the governed in a sovereign state. It is a trend recognized and deeply entrenched in the system of governance in civilized countries- it will not only be primitive but also retrogressive if Nigeria continues to require a pass to hold a rally. We must borrow a leaf from those who have trekked the rugged path of democracy and are now reaping the dividend of their experience.”
- In the affidavit in support of the motion on notice, it was deposed that the Applicant/Respondent had since concluded investigation and that persons who participated in the said protest of 5th August have been charged for unlawful assembly. The averment that the Respondent/Applicant has since volunteered statement to the Applicant/Respondent since the 7th and 8th August, 2019 were also not denied. It was also submitted in the written address accompanying the said motion on notice that since the planned protest actually took place on the 5th August, 2019 and that the respondent/Applicant did not partake in the said protests while those who partook of the protests were charged with the offence of unlawful assembly, there is no reason to detain the Respondent/Applicant on the bogus and excessively outrageous allegation of committing a terrorist act. We respectfully call on this honourable court to look through the smokescreen and see the claims of the Applicant/Respondent for what it is as enjoined by the Apex Court in a plethora of authorities. AHMED V COP, BAUCHI STATE (2012) 9 NWLR 104,SULEMAN V. C.O.P. PLATEAU STATE(2008) 8 NWLR (Pt.1089)298, ANAEKWE V COP (1996) 3 NWLR (PT. 436) 320, ENWERE V COP (1993) 6 NWLR (PT. 299)333.
- The Applicant/Respondent had dedicated so much time in addressing the court on the alarming danger the protest of 5th August 2019 portends. In its words, “my lord, in the instant case, the issues involved are just not terrorism but one that will shake the very foundation of the Nigerian state, one that is capable of eroding the right to life of millions of innocent Nigerians. This underscores the need to be more circumspect in addressing the issue.” (Please see generally issue three as formulated and argued by the Applicant/Respondent. ) This was an address filed on the 16th August, 2019, over a protest that already took place on the 5th August, 2019. It is therefore clear that the Applicant/Respondent has its own agenda in insisting that the Respondent/Applicant had planned to topple the government.
- The Supreme Court, per Niki Tobi, JSC (as he then was), has had course to admonish trial courts in the case of SULEMAN V. C.O.P. PLATEAU STATE(2008) 8 NWLR (Pt.1089)298 as follows:
‘‘The six letter word of murder comes with it so much fear as the law prescribes the death penalty. But like every other offence in our criminal law system, there is nothing magical in the word per se. but there is so much to fear in the offence because of death penalty. Therefore, where the prosecution merely parades to the court the word ‘murder’ without tying it with the offence, a court of law is bound to grant bail…The determination of the criteria is quite important because the liberty of the individual stands or falls by the decision of the court. In performing the judicial function, the court wields a very extensive discretionary power, which must be exercised judicially and judiciously. In exercising its discretion, the court is bound to examine the evidence before it without considering any extraneous matter. The court cannot exercise its whims indiscriminately. Similarly, there is no room for the court to express its sentiments. It is a hard matter of law, facts and circumstances which the court considers without being emotional, sensitive or sentimental.”
4.14 Quite embarrassingly, the Applicant/Respondent had maintained at paragraph 4 (xxvi) “that the facts deposed to in the affidavit in support of the Ex parte motion disclosed that the Respondent/Applicant was arrested on reasonable suspicion of having committed a terrorists’ offence.” Is the Applicant/Respondent informing this hallow chamber of justice that it has indeed conducted its investigation and found out that the Respondent/Applicant is indeed a terrorist? On what basis is it now coming to this Honourable Court seeking for an order to detain the Respondent/Applicant under Section 27 (1) of the Act? Indeed in INAKOJU V ADELEKE, supra, the Apex Court had counseled the ‘authorities’ thus; “The specific act of misconduct. I have outlined in this judgment cannot be and should not be taken as exhaustive but should be taken as some acts of misconduct This is not however a license for the Legislature to open a Pandora box of vendetta and rake up misconducts that are not gross.
4.15 Indeed the Apex Court had held in a long line of authorities that a court of law can competently set aside its own order in certain circumstances. In Onagoruwa v. Inspector-General of Police (1991) 5 NWLR (PT 193) 593 the Lagos High Court presided over by Agoro J. (as he then was) refused to set aside the order of Olugbani J. But the Court of Appeal held that Agoro J was wrong not to have set aside the order. Niki Tobi JCA (as he then was) of blessed memory said:
“…if a judge of the same High Court gives an order without jurisdiction, another judge of the same High Court should be given an opportunity to have a look at the order with a view to quashing it. That will keep the matter within the same ‘house’. One can even say on the lighter side that after all they are brothers and it will be much more tolerable on the part of the brothers who gave the null order to have it nullified by his brother than an appellate court for that matter. On a more serious breath, an order which is a nullity is something which the person affected by it is entitled to have set aside ex debito justitiae. See Adegoke Motors Ltd. V. Dr. Adesanya and Another (1989) 3 NWLR (PT 109) 250”.
4.17 In the instant case, the arrest of the Respondent / Applicant on August 2, 2019 and his detention from August 2 – 8, 2019 were carried out without any warrant of arrest and a detention order. It is therefore submitted that the ex parte order issued by this Honourable Court on August 8, cannot stand as it was based on an illegal arrest and illegal detention for 6 days. To that extent this Honourable Court ought to resolve issue three in favour of the Respondent/Applicant.
5.01 In the Reply to counter –affidavit the Respondent/Applicant has shown that based on the misleading advice of the Applicant/Respondent, any political leader who criticized the federal government has always been accused of engaging in sabotage, treason, treasonable felony or terrorism. Even President Buhari had been accused of sponsoring the dreaded Boko Haram sect. Other political leaders have been accused of sabotage or treason under the Buhari administration. Even some leaders have been linked to terrorism while APC leaders in Ekiti State were charged with terrorism on the advice of the Applicant/Respondent.
5.02 In this case, the Respondent has proved beyond any shadow of doubt that President Buahri and other leaders of the APC have taken part in demonstrations and street protests without being prosecuted for treason. Indeed, the APC leaders who were charged with terrorism for taking part in a protest were discharged as the charge was withdawn by the Police, even before arraignment. We therefore urge this Honourable Court to take judicial notice of the fact that the Applicant/Respondent has a penchant for accusing opponents of the federal government of terrorism, sabotage, treasonable felony and treason. This is the sole reason why the Respondent/Applicant was braded a terrorist and a coup plotter by the Applicant/Respondent.
5.03 In view of all that have been said above, we respectfully urge your lordship to in the interest of justice grant the relief sought herein in the interest of justice.
DATED THIS ______ DAY OF AUGUST, 2019
FEMI FALANA, SAN
OLUMIDE FUSIKA, SAN
JITI OGUNYE, ESQ
MALACHY UGWUMMADU, ESQ
FEMI ABORISHADE, ESQ
SAMUEL OGALA, ESQ
STANLEY IMHANRUOR, ESQ
DEJI MORAKINYO, ESQ
INIBEHE EFFIONG, ESQ
AUGUSTINE ASUQUO, ESQ
FEMI ADEDEJI, ESQ
IBOROABASI NTONG, ESQ
ERNEST OLAWANLE, ESQ,
MARSHAL ABUBAKAR ESQ
ETINYENE EKOP, ESQ,
DAVID UBONG, ESQ
Falana & Falana’s Chambers
NO 22 MEDITERRANEAN STREET,
FOR SERVICE ON:
The Applicant/ respondent’s Counsel
GOA AGBADUA, ESQ
Counsel for the Applicant.