Legal Nigeria

Appeal Court okays ex-NSA Dasuki’s detention

The Court of Appeal in Abuja yesterday okayed the continued detention of former National Security Adviser (NSA), Sambo Dasuki, and held that his re-arrest after he was released from prison custody on December 29, 2015, was not a violation of any existing order.
The appellate court gave its decision in a judgement delivered yesterday by a panel of five Justices led by Justice Abdul Aboki. The judgment was on one of the two appeals by Dasuki against the earlier rulings by Justices Husein Baba Yusuf (of the High Court of the Federal Capital territory (FCT), Abuja and Adeniyi Ademola (of the Federal High Court, Abuja).
Both judges had held that the decision of the Department of State Services (DSS) to re-arrest Dasuki after he was released by the authority of the Kuje prison, upon meeting the conditions of bail granted him by the three judges before who he is standing trial, was not a violation of any existing orders.
Dasuki, through his lawyer, Joseph Duadu, appealed the decisions of both judges, arguing that his continued detention was a violation of the orders releasing him on bail and a breach of his right to freedom of movement.
The Court of Appeal, in a unanimous decision, but with the lead judgment read by Justice Aboki, held that Dasuki’s appeal was incompetent and dismissed it.
The court resolved the sole issue, it raised for determination, against Dasuki. The issue was: “Whether the trial judge was not right in dismissing the appellant’s application seeking to stop the prosecution from further prosecuting the charge against the appellant before the lower court on the ground that the prosecution was in breach of the order admitting the appellant to bail pending appeal.”
The court noticed that Dasuki was, after his arraignment, detained in Kuje prison and when he perfected his bail, was released on December 29, 2015 from the prison by the Controller of Prisons.
It further noted that the warrant of release was directed, by the court, at the Controller of Prisons. There was no controversy about this.
“Once the appellant was released from prison on December 29, 2015 the order of court, admitting him to bail and releasing him from prison, where he was detained, has been complied with.
“The order was not complied with by the EFCC as it was not the subject and it was not directed at it.  For this reason, it is fallacious to argue that the EFCC did not comply or had disobeyed the court order for bail. The order was discharged by another agency of government – the Controller of Prisons.
“The power to punish for disobedience to court order is quasi-criminal, and by Section 36(9) of the 1999 Constitution, no person is guilty of any act or omission that was not an offence at the time it was committed. In the instant appeal, the trial judge in his ruling, giving right to this appeal, said he did not make any order against Dasuki’s re-arrest,” the court said.
The court was of the view that since there was no order made against Dasuki’s re-arrest, there cannot be a disobedience of a subsisting order of the court whether by the EFCC or DSS.
“Apart from the existence of an order, it must be shown that the order was served on the alleged contemnor. Here, the trial judge found that there was no service of Form 48 on the DSS.
“The failure to serve the order is fatal to the proceedings as disobedience could not have been established. Since the DSS was not served with the order of the court and Form 48, they could not know the order of court the allegedly disobeyed,” the court further said.
It said the appellant (Dasuki) ought to have established that terms of the court order were clear and unambiguous, and that the respondents have proper notice of the order. It added that if any of these ingredients is missing, it would be impossible to prove a charge of disobedience of court order.
“The order was clear, but it did not prevent re-arrest. The order was not served on DSS and, in effect, the EFCC. I need to point out also that the disobedience to court order, as contended, is an indication of crime, and so, the onus is always on the appellant, who alleges offence to prove that not only is there offence, but it was actually the EFCC or any other body that actually committed it.
“The EFCC did not re-arrest the appellant, as found by the trial judge. The DSS that allegedly re-arrested him has not been served with the court order not to re-arrest him. So, it could not have acted with any guilty mind.
“From the foregoing therefore, I firmly hold that there was no violation or disobedience of the order of the High Court made on the 18th of December 2015 whatsoever,” it said.
The court faulted the appellant’s argument that the act of the EFCC was the act of the DSS since they are both agencies of the complainant in the charge against him – the Federal Republic of Nigeria.
It said both agencies are separate entities, set up be separate Acts and gave them separate functions and powers, one cannot bind the other or perform the functions of the other.
It drew an analogy to explain its position, and asked that: “If the appellant, having been granted bail, is driving along the road, and he committed a traffic offence, and the Police, which is also an agency of the Federal Government, can the Controller of Prisons, directed by the order of court to release him be arrested for disobedience of an order of court?
“In short, the lone issue for determination is resolved in favour of the 1st respondent and against the appellant and the other respondents, who did not file any brief and who sought to swim with the appellant.
“It is pertinent to observe that bail is of right to a person accused of a crime, once it is not a homicide charge, to enable him to prepare for his defence, which is his constitutional right. If a court grant bail, the order should be complied with as disobedience to court order is injurious to the smooth running of the administration of justice, and erodes the rule of law, which is necessary and part and parcel of any democratic society and to avoid anarchy. This appeal lacks merit. And it is hereby dismissed,” It said.
The judgment given in the appeal marked: CA/A/115C/M/2016 was, by the agreement of parties, applied to the other appeal marked: CA/A/159C/M/2016 because they were substantially the same.
The Nation