Omoyele Sowore, Convener of #RevolutionNow protests, who is presently in detention, on Friday, approached the Federal High Court, Abuja, seeking an order to vacate the ex parte order that gave the Department of State Service (DSS) the legal backing to detain him for 45 days.
Justice Taiwo Taiwo had, in a ruling on Thursday 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.
Sowore, who is the publisher of SaharaReporters and Presidential Candidate, African Action Congress (AAC) in the Feb. 2019 general elections, was arrested in the early hours of Aug. 4 by the operatives of the DSS in a hotel in Lagos.
He was moved to Abuja on Aug. 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 is asking the court to vacate the order on the grounds that the order was made in violation of his full.
The motion filed on Aug. 9 by Mr Femi Falana, SAN, was predicated on 18 grounds and supported by a 24 paragraphs affidavit deposed to by one Marshall Abubakar.
Part of the grounds are that, ”The said order breached the fundamental right provisions of the 1999 Constitution (as amended).
”The detention of the respondent/applicant for an initial 4 days period before the grant of the ex-parte order is illegal by virtue of Section 35 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 Aug. 3 before the planned protest that took place on Monday, Aug. 5 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 Aug. 5 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,”” he said.
Falana disclosed that by virtue of the actions of the Federal government, Sowore’s right to life, dignity of human person, health and freedom of movement are under threat as same is currently being violated by the respondent without any justification known to law.
In the supporting affidavit, the deponent averred that the DSS had concluded investigation of the case and had announced its findings.
”That it will serve the interest of justice if the order for the detention of the Respondent /Applicant is set aside.
”That this honorable court has the jurisdiction to set aside its own order made pursuant to an ex-parte application.
”That unless this Honorable court intervenes by ordering the Respondent to release the Applicants forthwith and pay them adequate compensation for their illegal detention, the Applicants will continue to languish in the Respondent’s custody without being charged to court”.
He therefore prayed the court for, “An order setting aside, discharging and/or vacating the ex parte order of this Honourable Court for the detention of the Respondent/Applicant for a period of 45 days made on the Aug. 8 Coram: Taiwo Taiwo J, in Suit No: FHC/ABJ/CS/879/2019 between State Security Service V. Omoyele Sowore.
“And for such Order or other Orders as this Honourable Court may deem fit and proper to make in the circumstances”.
The DSS had on Aug. 6 through an exparte application sought an order of court to detain Sowore for a period of 90 days to enable them conclude their investigation of alleged act of treason and terrorism.
Justice Taiwo said after consideration of the argument canvassed by the DSS’ Counsel, Godwin Agbadua, he came to the conclusion that there is an allegation of commission of crime by the respondent and that investigation is still on going.
He added that since the facts are allegations “which must be proved at the appropriate place and time”, he was inclined, ” to grant the application only to the extent that the respondent shall be detained for a period of 45 days for the applicant to conclude its investigation”.
Justice Taiwo however said if at the end of the 45 days, investigation was yet to be concluded, the applicant can apply for a fresh order but must not keep him without an order of court.