…Falana: DSS has no power to detain Sowore
By Dwelleth Morountodun
Justice Nkeonye Maha of the Abuja Division of the Federal High Court, on Wednesday declined to entertain an application by convener of
#RevolutionNow Protest, Mr. Omoyele Sowore, challenging an order of the Court permitting his detention for a period of 45 days by the Department of State Services (DSS).
Maha predicated the order on grounds that she cannot review an order made by a court of equal jurisdiction and accordingly returned the file to the Chief Judge of the Federal High Court.
Recall that Justice Taiwo Taiwo had on August 8, 2019, ordered the detention of Sowore, the publisher of Sahara Reporters for 45 days.
However the DSS had in an exparte application prayed for the Court’s permission to keep Sowore for 90 days to enable it conclude investigation of alleged felony, the court however held that 45 days should suffice in the interim, adding that the agency can seek another order at the expiration of the first if it was yet to conclude within the 45 days given.
Dissatisfied with the decision of the Court, Sowore, on August 9, filed an application requesting the court to set aside the ex parte order which permitted the DSS to keep him in custody 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.
Sowore’s lawyer, Femi Falana SAN, urged the court to abridge the time and hear the application before the expiration of the 45 days, when the matter came up for hearing on Wednesday.
While submitting that the DSS has no power, under the law, to detain his client, Falana said the Court will be doing justice by hearing the application before the expiration of the 45 days.
He further submitted that Order 26, Rule 9 of the Federal High Court procedural Rule empowers the court to hear the application.
According to Justice Maha, in a short ruling said Justice Taiwo had, in his order, made on August 8, granted the DSS leave to hold Sowore for a period of45 days, adding that, by the order, the return date in the matter shall be September 21, 2019.
Part of the grounds on which the application was predicated are that, “The said order breached the fundamental right provisions 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 August 3, 2019 before the planned protest that took place on Monday August 5, 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 August 5, 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.
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.