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Nigerian Lawyers Must Stop Obtaining Court Orders To Shield Corrupt Elites From Prosecution – Falana

Falana
January 24, 2023

Falana disclosed this in an article titled “Courts lack power to stop arrest, investigation and prosecution of criminal suspects” obtained by SaharaReporters on Tuesday.

Human rights lawyer, Femi Falana, SAN, has urged lawyers to desist from securing court orders that protect the elite, especially those accused of corruption.

Falana disclosed this in an article titled “Courts lack power to stop arrest, investigation and prosecution of criminal suspects” obtained by SaharaReporters on Tuesday.

According to him, citizens who are accused of crimes are locked up while the rich criminal suspects are usually invited by the anti-graft agencies to react to allegations of corruption and other economic crimes leveled against them.

The statement read, “It is common knowledge that the police invade the homes of the poor to arrest them and take them to police stations where they are detained and charged with all manners of criminal offences in Nigerian courts. Usually, they are denied bail and locked up in correctional centres for years without trial. Even when they are granted bail they are unable to meet the onerous conditions attached to it as the sureties are required to be property owners. Hence the correctional centres are peopled by not less than seventy percent of indigent suspects that are awaiting trial.

“But rich criminal suspects are usually invited by the anti-graft agencies to react to allegations of corruption and other economic crimes leveled against them. In many instances, top lawyers are hired by the highly placed suspects to rush to the either the federal high court or state high court to challenge the legality of the invitation letters. Applications for the enforcement of the fundamental rights of the suspects to personal liberty are filed. In granting the applications, orders of interim, interlocutory and perpetual injunction are made by the courts to restrain the police and anti-graft agencies from arresting, investigating and prosecuting the suspects. In many instances, temporary or permanent immunity has been conferred by public officers or private individuals indicted in criminal diversion of multi million Naira public fund. 

“Disturbed by such dangerous trend, the appellate courts have cautioned the high courts and other courts in the land to desist from shielding rich criminal suspects from prosecution as no one is above the law. In particular, the Supreme Court has repeatedly maintained that courts lack the vires to usurp the constitution powers of the executive to maintain law and order and rid the society of corruption and other economic crimes. But since the illegal practice has not stopped it is pertinent to review the two cases pertaining to the orders of the federal high court and the high court of the federal capital territory on the personal liberty of the embattled Governor of the Central Bank of Nigeria, Mr. Godwin Emefiele.

 “Before reviewing both cases, it is pertinent to draw the attention of Nigerian lawyers to the relevant judicial authorities on the powers of the police and anti-graft agencies under section 35(1) © of the Constitution to arrest, investigate and prosecute criminal suspects if there is reasonable suspicion they have committed criminal offences  guaranteed. A few of the cases are hereby set out below:

“Orji Kalu v Federal Republic of Nigeria (2016) 39 WRN 53   - On 31st May 2007, the appellant applied to the High Court, Umuahia Judicial Division, Abia State to secure the enforcement of his fundamental rights to personal liberty, dignity and fair hearing.  In granting leave to the appellant, the learned trial judge, Kalu J. ordered that "the leave so granted shall operate as a stay of all actions or matters relating to or connected with the complaint hereof until the determinations of the motion on Notice That the Respondent would not suffer any detriment if they are restrained from arresting, detaining or prosecuting the Appellant until he constitutionality and legality of the said threat is determined".

“Notwithstanding the said order the Economic and Financial Crimes Commission (EFCC) filed a charge against the appellant at the Federal High Court holden at Abuja and obtained a warrant for the arrest of the Appellant.  A notice of preliminary objection against the charge was filed by the appellant on the ground that the EFCC had violated the order of the High Court of Abia State. The preliminary objection was dismissed by the trial court. On appeal to the Court of Appeal the ruling of the trial court was upheld. The appeal to the Supreme Court by the appellant was equally dismissed on the ground that the trial court was not bound by the order of the Abia State High Court.

“In the leading judgment of the apex court, Galadima JSC held that "I agree with the court below that the suit No.HU/177/2007 filed at Abia State High Court by the Appellant was nothing but a ‘gagging suit’ with the order made there from on 31/5/2007, designed to frustrate, prevent, and discourage the 1st Respondent from discharging its statutory functions. See the opinion of Lord Denning, Mr. on this point in WALLER STEINER V. MOIR (1974) 3 All ER. 217. This important point made in this case is further restated in Attorney-General v. Times Newspapers Ltd (1973) 3 All ER. 54 at 60 per Lord Reid.

“In dismissing the appeal Justice Galadima stated that "The suit of the Appellant, at Abia State High Court and the general and ambiguous order made therein from were clearly intended to "muzzle" or prevent the 1st Respondent from discharging its statutory function."