The Federal High Court, Abuja, on Wednesday, refused to grant the motion filed by Omoyele Sowore, Convener, #RevolutionNow protests, challenging his detention for 45 days by the Department of State Security (DSS).
Justice Nkeonye Maha, who declined all applications by Counsel to Sowore, Femi Falana, SAN, sent the case back to Justice Taiwo Taiwo for further hearing.
Falana, who had asked the court to set aside the exparte order granted by Justice Taiwo, also applied for oral bail when Justice Maha rejected the earlier application.
Sowore. who is presently in detention had, on Aug 9, approached the court, seeking an order to vacate the ex parte order that gave the DSS the legal backing to detain him for 45 days.
Justice Taiwo had, in a ruling on Aug. 8 in an exparte application, ordered Sowore’s detention for the said period to enable the DSS carry out and conclude its investigation on allegations levied against him.
Taiwo, who stated that he had looked at the facts presented by the applicant, said ”I will fail in my duties if I do not act on those facts at least until the contrary is proven.”
The judge thereafter adjourned the matter until September 21.
According to him, the order takes effect from today, August 8.
The DSS had also, on August 20, challenged the court order, allowing it to detain Sowore for 45 days against its request of 90 days pending investigation.
Sowore, who is the publisher of Sahara Reporters and Presidential Candidate, African Action Congress (AAC) in the February 2019 general elections, was arrested in the early hours of August 4 by the operatives of the DSS in a hotel in Lagos.
He was moved to Abuja on August 4.
The state agency said Sowore was arrested on account of the #RevolutionNow protest which he had spearheaded.
However, 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 asked the court to vacate the order on the grounds that the order was made in violation of his full rights.
The motion filed on August 9 by the human rights lawyer, Falana, was predicated on 18 grounds and supported by a 24-paragraph affidavit deposed to by one Marshall Abubakar.
Falana, however, stormed Court 10, on August 22, where Justice Taiwo was sitting, to seek for a date for the hearing of the application.
The lawyer had expressed displeasure over the court’s delay in hearing the motion.
Meanwhile, on Wednesday, Counsel to the DSS, O. J. Oye, told Justice Maha that he got Sowore’s counter-affidavit late and he would need more time to reply.
“I was called yesterday (Tuesday) by 11 O’clock that the matter will be coming up today.
“And I was served their motion at about 9:15 this morning by my learner colleague,” he said.
However, Falana argued that he had filed an application challenging the exparte order on Aug. 9 and for about 20 days, it was not heard.
“With profound respect My Lordship, the DSS filed an exparte motion and it was granted on Aug. 8.
“On Aug. 9, we filed a motion, challenging the order before your learner brother, Justice Taiwo, and for the past 20 days, we have been waiting,” he said.
The lawyer said that all efforts made to ensure that Justice Taiwo hear the case were unsuccessful.
He said within the period, he approached Justice Taiwo in the court to seek for a date but all to no avail.
He said when the matter was finally scheduled for hearing by Justice Maha, “we took the processes to the DSS office yesterday (Tuesday) and they refused to collect.”
Justice Maha told Falana that since the Wednesday’s hearing was based on the Aug. 9 motion he filed, it was not within her jurisdiction to set aside the order of her learner brother who had already set Sept. 21 for hearing.
However, Falana argued that, under the law, once an exparte order of a court is made against an individual’s fundamental human rights, one is at liberty to approach the court to vacate the order within seven days of the ruling.
“My Lord, you have the absolute power to set aside the order,” he told Maha, citing previous cases to back his argument.
The judge responded that those cases Falana alluded to were different from the current one as they were vacation judges.
Falana, therefore, said that since what the DSS counsel was asking for was only a time to reply his counter-affivafit, the judge could as well adjourn for about two days to enable Oye reply his motion.
He stressed that the judge had right to abridge the 45-day detention period since the DSS that asked the court to detain Sowore had no power to do so.
The DSS lawyer, who insisted that he would need more time to respond to new the developments in the counter-affidavit, said going forward with the case would be an ambush.
“This is an ambush. It is a deliberate attempt to shut us out. We will only need time to respond,” he said.
Justice Maha said her concern was that there was a ruling on the matter and if Falana wanted the case to be heard, he could as well approach the Chief Judge to get a fiat for Justice Taiwo to hear the matter.
She said Justice Taiwo could be summoned to hear the case since he was also a vacation judge.
At this juncture, Falana decided to apply for an oral bail for his client.
“In that case, My Lord, I will ask for bail orally for the respondent/applicant,” he said.
Justice Maha, who stated that the matter was already a “functus officio,” said after looking at the processes before her, it was not in the act of the court to overrule the decision of court of cognate jurisdiction.
The judge, therefore, referred the case back to Justice Taiwo for hearing.