Alex Enumah in Abuja
Justice Nkeonye Maha of the Abuja Division of the Federal High Court will Wednesday hear the application of the convener of #RevolutionNow protests, Omoyele Sowore, challenging his detention by the Department of State Services on the order of the court.
The motion THISDAY findings revealed is among the cases listed for Wednesday by Justice Maha, one of the vacation judges at the Federal High Court, Abuja.
Justice Taiwo Taiwo had in a ruling in an ex parte application delivered on August 8, ordered Sowore’s detention for a period of 45 days to enable the Department of State Service (DSS) carry out and conclude its investigation of Sowore on allegations of instigating the public and seeking a change of the present administration through unconstitutional means.
Sowore, however on August 9, the following day in an application urged the court to set aside the ex parte order of his detention by the DSS 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 is asking 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 Senior Advocate of Nigeria, Femi Falana, was predicated on 18 grounds and supported by a 24 paragraphs affidavit deposed to by one Marshall Abubakar.
Part of the grounds are that, “The said order breached the fundamental right provisions of the 1999 Constitution (as amended).
“The detention of the respondent/applicant for an initial 4 days 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.
Other grounds canvassed by Falana was 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 5th August, 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 disclosed that by virtue of the actions of the Federal Government, Sowore’s right to life, dignity of human person, health and freedom of movement are under threat as same is currently being violated by the respondent without any justification known to law.
In the supporting affidavit, the deponent averred that the DSS had concluded investigation of the case and had announced its findings.
“That it will serve the interest of justice if the order for the detention of the Respondent /Applicant is set aside.
“That this honorable court has the jurisdiction to set aside its own order made pursuant to an ex-parte application.
“That unless this Honorable court intervenes by ordering the Respondent to release the Applicants forthwith and pay them adequate compensation for their illegal detention, the Applicants will continue to languish in the Respondent’s custody without being charged to court”.
He therefore prayed the court for, “An Order setting aside, discharging and/or vacating the ex parte order of this Honourable Court for the detention of the Respondent/Applicant for a period of 45 days made on the 8th August, 2019, Coram: Taiwo Taiwo J, in Suit No: FHC/ABJ/CS/879/2019 between State Security Service V. Omoyele Sowore.
“And for such Order or other Orders as this Honourable Court may deem fit and proper to make in the circumstances”.
The DSS had on August 6 through an exparte application sought an order of court to detain
Sowore, publisher of Sahara Reporters and presidential candidate of the African Action Congress in the February 2019 election for a period of 90 days to enable them conclude their investigation of alleged Act of treason and terrorism.
Justice Taiwo said after consideration of the argument canvassed by the DSS’ lawyer Godwin Agbadua, he came to the conclusion that there is an allegation of commission of crime by the respondent and that investigation is still on going.
He added that since the facts are allegations “which must be proved at the appropriate place and time”, he was inclined, ” to grant the application only to the extent that the respondent shall be detained for a period of 45 days for the applicant to conclude its investigation”.
Justice Taiwo however said if at the end of the 45 days, investigation was yet to be concluded, the applicant can apply for a fresh order but must not keep him without an order of court.
Sowore was arrested in the early hours of Saturday in a hotel in Lagos by men of the DSS on account of the #RevolutionNow protest which he had spearheaded.
He was then moved to Abuja on Sunday morning and is currently being detained in the custody of the DSS.
To avoid running against the Provisions of the law which stipulate that an accused cannot be detained for more than 48 hours, the agency had approached the court for an order to keep Sowore for the next 90 days pending its conclusion of investigation.
The request was contained in exparte motion marked FHC/ABJ/CS/ 915/19 and filed on behalf of the agency by Agbadua.
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