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Courts lack power to stop arrest, investigation, and prosecution of criminal suspects

By Femi Falana SAN

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.” 

Attorney General Anambra State v. Chief Chris Uba (2005) 15 NWLR (Pt. 947) 44

“For a person, therefore to go to court to be shielded against criminal investigation and prosecution is an interference with powers given by the Constitution to law officers in the control of criminal investigation. The plaintiff has no legally recognizable right to which the court can come to his aid. His claim is not one the court can take cognizance of for it has disclosed no cause of action. The plaintiff cannot expect a judicial fiat preventing a law officer in the exercise of his constitutional power.” It is indeed trite that no court has the power to stop the Police from investigating a crime and whether to or how it is done is a matter within the discretion of the Police”. Per Bulkachuwa JCA (as she then was).

Ewulo v. Economic and Financial Crimes Commission & Ors (2015) LPELR-40912(CA)

“It is no longer in doubt that Agencies vested with statutory powers to investigate crimes cannot be restrained or arm-twisted by litigation to prevent them from exercising their statutory powers. Under the provisions of Section 4 of the Police Act and the provisions of Section 41 of the Economic and Financial Crimes Commission Act 2004, the Commission cannot be held accountable for any invitation, arrest and or detention of any person in the process of discharging its statutory duties of investigating and preventing the commission of crimes. see: FAWEHINMI vs. IGP (2000) 7 NWLR (Pt. 665) 481, A.G ANAMBRA STATE vs. UBA (2005) 15 NWLR (Pt. 947) 44. The right to personal liberty and freedom of movement canvassed by the Applicant/Appellant are not enough reasons to justify restraining the Commission from discharging its duties, once there is semblance of legal justification in the exercise of statutory powers, the Courts must refrain from making orders that have the consequence of stultifying the proper exercise of statutory powers.”-Per ABUBAKAR, JCA (Pp. 35-36, paras. E-C)

Hassan v. Economic and Financial Crimes Commission (2013) LPELR- 22595 (CA), PP. 39-40, paras F – E) 

“It is trite that once criminal allegations are made against a citizen, the police has a constitutional and a statutory duty to investigate the allegations…and in carrying out these tasks, the police is empowered under the provisions of Section 24 of the Police Act to arrest without warrant any person whom any other person charges with having committed a felony or misdemeanor – Ibikunle v. State (2007) 2 NWLR (pt. 1019) 546. provided, as stated in Section 27 of the Police Act, that a person so, arrested without a warrant shall be taken before a magistrate within a reasonable time or granted bail with or without sureties at the police Station. Reading these provisions of the police Act along with the provisions of Sections 35 (1) (c), 41 (2) (a) and 45 of the Constitution, it is clear that where it is shown that the police acted reasonably within its powers under the Police Act in the investigation of a criminal complaint and with reasonable grounds to believe that a person had committed a criminal offence or is likely to commit one, the necessary curtailment of the fundamental rights of such a person cannot amount to a breach of that person’s fundamental rights – Onah v. Okenwa (2010) 7 NWLR (pt. 1194) 512.”  (Underlining mine). See also AGBI v. OGBEH (2005) 8 NWLR (pt. 926) CHRISTLIEB PLC v. MAJEKODUNMI [2008] 16 NWLR (PT. 1131) 324.”

Uwazuruike v. Attorney-General of the Federation (2008) 10 NWLR (Pt.1096) 444 at 458-459 the Court of Appeal had held as follows:

“It is apparent that the Federal High Court, Owerri and Federal High Court, Abuja are Courts of concurrent jurisdiction, therefore the contention by the counsel for the Appellant that 1st Appellant was charged to court maliciously in flagrant disrespect of an order of Federal High Court, Owerri cannot be correct, because courts that are of similar or concurrent jurisdiction are not bound to follow the decision of each other. See-PROF. AD. OLUTOLA V. UNIVERSITY OF ILORIN (2005) 3 W. R, N PAGE 22} (2004) 18 NWLR (PT.905) 416.

I also agree with the submission of learned counsel for the respondent that an order granted by the Federal High Court, Owerri was an ex parte order for the applicant that is the 1st Appellant in this Court, to enforce his fundamental human rights. It was not order directed to the proceedings before the same court sitting in Abuja. Consequently is my view that the trial judge was right not to have given credence to the Federal High Court, Owerri as the order given by that court was not binding on her”.

Isokariari v Economic and Financial Crimes Commission (2018) LPELR-46271(CA)

“The Courts should not be used in any attempt to shield a person from criminal investigation and possible prosecution. No person in this country is above the law. The only exception being the President, Vice President, Governors and Deputy Governors while they hold those positions. Even in case of these officers, they can be investigated and prosecuted after leaving office. See AG Anambra State V Uba (2005) 15 NWLR (Pt. 947) 44 and Sambo & Ors V. The Nigerian Army Council (2015) LPELR 40636.”-Per Lamido JCA.

Ken Nwafor v Economic and Financial Crimes Commission (2021) 31 WRN 120

“My lords, in the circumstances of this Appeal, it may be apt to point it out at once here and now that whilst performing its legitimate duties, no Court of law has the power to stop the EFCC from investigating a crime and therefore, no person against whom there is a reasonable suspicion of having committed an offence or likely to commit an offence would be granted any relief capable of shielding him against criminal investigation and prosecution since no citizen has any right to be an outlaw under the laws of this country. See Atakpa V. Ebetor (2015) 3 NWLR (Pt. 1447) 549 @ p. 558. See also IGP V. Ubah (2015) 11 NWLR (Pt. 1472) 405 @ p. 413; Nzewi V. COP (2000) 2 HRLR 156 @ p. 159; Badejo V. Minister of Education (1996) 8 NWLR (Pt. 464) 15 @ p. 19; Hassan V. EFCC (2014) 1 NWLR (Pt. 1389) 607 @ p. 613; Gani Fawehinmi V. IGP (2002) 7 NWLR (Pt. 767) 606; AG. Anambra State V. Uba (2005) 15 NWLR (Pt. 947) 44; ChristliebPlc V. Majekodunmi (2008) 16 NWLR (Pt. 1113) 324; Onah V. Okenwa (2010) 7 NWLR (Pt. 1194) 512; Amaechi V. INEC (2008) 5 NWLR (pt. 1080) 227 @ p. 252.”- Per Georgewill JCA.”

State Security Service v Godwin Emefiele (Suit No FHC/ABJ/CS/2255/2022)

The Federal High Court declined to grant an application by the State Security Services to arrest and detain Godwin Emefiele, the Governor of the Central Bank of Nigeria (CBN). In rejecting the motion ex parte filed by the SSS, Justice J.T. Tsoho, the Chief Judge, said the secret police did not provide any concrete evidence to substantiate its claims that Emefiele was involved in terrorism financing and economic crimes. His Lordship who ruled that “if the applicant believes that the evidence available to it so far is sufficient, then it can as well arrest and detain the applicant, even without the order of the court. If however, the applicant desires to still pursue this application, then it should place the respondent on notice considering the sensitive public office that he occupies.”

Incorporated Trustees of the Forum for Accountability and Good Leadership v Attorney-General of the Federation & Ors (Suit No FCT/HC/GAR/CV/41/2022)

A few days after the Federal High Court had thrown out the application for the arrest of Mr. Godwin Emefiele a non-governmental body, Incorporated Trustees of the Forum for Accountability and Good Leadership approached the High Court of the Federal Capital to stop his arrest, investigation and prosecution. In granting the application the presiding Judge, Justice M.A. Hassan barred the SSS and other respondents “from instigating the arrest or arresting, interrogating and detaining Godwin Emefiele, the Central Bank Governor in respect of any matter or policy decision on the economy of the Federal Republic of Nigeria or for any connected purposes except by an order of a Superior Court.”

With respect, the creeping order of the Honourable Justice Hassan has generated a needless controversy. In fairness to her Ladyship, she made it clear that the order could be varied by “an order of a Superior Court.” In Nzewi v. Commissioner of Police (2000) 2 HRLRA 157, a similar situation had arisen. In explaining the purport of the order restraining the police from arresting the Applicants, Ajakaiye J. held that “It is clear that what the court intended in that order is that the applicants should not be arrested unless there is a legal basis or justification for it. It cannot be said to mean that the order granted to the applicants a general bill of immunity or insurance from legal processes or redress in appropriate cases. The order was not meant or could not have intended to make the applicants or any of them an institution or anybody above the law. It was implicit in that order that while they carry on their lawful business peacefully and while they continued to be law abiding, their fundamental rights as enshrined in our Constitution remain inviolate and guaranteed. No court of law can make an order capable of turning a citizen into an out-law.”

It is therefore submitted, without any fear of contradiction, that no Nigerian Court has the power to restrain the police, anti-graft agencies and other security bodies from arresting, investigating and prosecuting any person indicted in the investigation of a criminal offence in Nigeria. To that extent, the ruling of the Chief Judge is in line with Section 35(1)(c) of the Constitution which provides that the liberty of a citizen may be breached for the purpose of arresting him or her if there is reasonable suspicion that he or she has committed a criminal offence. 

Conclusion 

In view of the foregoing it is pertinent to caution lawyers and to desist from obtaining courts orders to confer immunity on members of the ruling class contrary to section 308 of the Constitution which provides that only the President, Vice President, Governors and Deputy Governors are immune form arrest and prosecution during their term of office. It is particularly germane to draw the attention of members of the legal profession to the case of a judge of the federal high court who was once recommended for retirement by the National Judicial Council for restraining the Attorney-General of the Federation, Inspector-General of Police, Independent Corrupt Practices and Other Related Offences Commission as well as Economic and Financial Crimes Commission from arresting, investigating and prosecuting some public officers accused of corruption and other economic crimes. The basis of the recommendation was that the Judge had deliberately ignored the decisions of the appellate courts on the matter.

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