A Federal High Court in Abuja has directed service of court documents on the Attorney General of the Federation (AGF) and the Director General of the Department of State Services (DSS) to explain why #Revolution Now Convener Omoyele Sowore was still being held.
The court’s documents comprise the ex parte application and other papers filed for Sowore by his lawyer, Marshal Abubakar, challenging his continued detention and seeking his release.
The court directed that the AGF and the DSS boss be served with the ex parte motion and other accompanying papers to enable them show cause why the prayers sought by the applicant should not be granted.
When the case was called yesterday, Abubakar moved the ex parte application and prayed the court to order his client’s release.
Justice Inyang Ekwo, in a ruling, said he needed to hear from the respondents (AGF and DSS boss) before taking a decision.
Justice Ekwo adjourned till December 23, 2019 for hearing.
The judge ordered that hearing notices be served on both respondents to enable then attend court on the next adjourned date.
In the motion, Abubakar had prayed the court for an order to produce Sowore for an unconditional release, pursuant to the release order made by the court on November 6, 2019.
The lawyer recalled that the applicant was arrested on August 2, 2019, without a warrant of arrest.
He added that Sowore was further detained from August 2 to 7, without an order of court thereby breaching his fundamental human rights.
Abubakar argued that the respondents failed or refused to obey the orders of Justices Taiwo Taiwo and Ijeoma Ojukwu, both of the Federal High Court, Abuja, who ordered the release of his client on bail.
Also, activist-lawyer Femi Falana (SAN) has urged the Attorney General of the Federation (AGF) Abubakar Malami (SAN) to order immediate release of Sowore.
He said it is the duty of the AGF to order his client’s release, having taken over his case from the Department of State Services (DSS).
Falana made the request yesterday in a statement, titled: “Duty of AGF to Release Sowore from illegal custody of SSS.”
The lawyer was reacting to a statement the AGF issued on Monday, in which he reportedly said he had no control over the detention of Sowore.
He said: “Since Mr. Malami has taken over the case of FRN v Sowore & Another, he is deemed to possess ‘the constitutional powers in full and the responsibility for any decision thereupon rests solely on him’.”
The statement reads: “On December 13, 2019, the Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami (SAN), announced that he had taken over the case of Omoyele Sowore and Olawale Bakare from the DSS.
“Based on the official statement, we had requested Mr. Malami to direct the DSS to release Sowore on bail in strict compliance with the order of the trial judge, the Honourable Justice Ifeoma Ojukwu.
“But in a statement issued yesterday (Monday), Mr. Malami, who has taken over the case, has curiously said he has no control over the detention of Sowore by the DSS.
“With respect, Mr. Malami has not taken cognisance of the legal implications of taking over a pending criminal case in exercise of the powers of an Attorney-General under the common law and the Constitution.
“In the case of State v Ilori (1983) JELR 51804 (SC) the Supreme Court dwelt in extenso on the powers of an Attorney-General under Section 193 of the 1979 Constitution, which is in pari materia with Section 174 of the 1999 Constitution.”
“In that case, Eso JSC, of blessed memory, said inter alia: ‘An Attorney-General, who proposes to act under his powers to institute and undertake, take over and continue or discontinue criminal proceedings, would need to bear in mind public interest, interests of justice and the need to prevent abuse of legal process before he exercises his powers, since if he ignores any of these, he would run the risk of exposing himself to removal or reassignment by his appointor, and above all – and this is most important – also to public opinion’…”
Falana averred that the powers of the AGF, “under Section 191 (and notwithstanding sub-section (3) thereof) are still a matter for his quasi-judicial discretion and one within his complete province. He still possesses the constitutional powers in full and the responsibility for any decision thereupon rests solely on him.”
He added: “Since Mr. Malami has taken over the case of FRN v Sowore v Another, he is deemed to possess ‘the constitutional powers in full and the responsibility for any decision thereupon rests solely on him’.
“Therefore, he cannot, like Pontius Pilate, wash his hands off with respect to the illegal detention of Sowore by the DSS. Furthermore, since Section 287 of the Constitution has imposed a legal obligation on all authorities and persons in Nigeria to comply with the decisions of all competent courts the AGF, Mr. Malami, is duty-bound to direct the DSS to release Sowore on bail in compliance with the valid and subsisting order of the Federal High Court.
“In the said statement, the AGF stated that when parties submit their issues for determination to a court of law, they lack exclusivity of decision over such issues without recourse to the court.
“We remain guided by the established tradition and will not take unilateral decision without recourse to the rule of law.
“We fully agree with the AGF because he has stated the law correctly. ‘On the basis of the legal principle, we are compelled to call on the Attorney-General to reverse the ‘unilateral decision’ of the DSS to continue to incarcerate Sowore ‘without recourse to law’.
“Having taken over the prosecution of the case pursuant to Section 174 of the Constitution, the AGF should not hesitate to direct the DSS to release Sowore without any further delay,” Falana said.