By Jude-Ken Ojinnaka
A Federal High Court sitting in Lagos, presided over by Justice Chukwujekwu N. Aneke has dismissed an enforcement of fundamental rights suit filed by Mr Afeez Olawale Mudasiru against the Economic and Financial Crimes Commission and Attorney General of the Federation for lack of merit.
Justice Aneke who dismissed the Applicant’s suit in his judgement on charge number FHC /L/CS/2469/2023 held that the EFCC (1st Respondent )acted within its powers to detain the applicant as they have done and should remain with the Commission until he is extradited to the United States of America to stand his trial.
Afeez Olawale Mudasiru (Applicant) through his counsel, filed a suit against EFCC and AGF, seeking an enforcement of his fundamental human right.
In his reliefs sought as set out in his Originating Motion and Statement which accompanied his application dated and filed on December 1, 2023, the applicant prayed the court for the following reliefs amongst others:
” A declaration that the arrest, detention, harassment and incarceration of the applicant since August 14, 2023, is a violation of his fundamental human right to dignity of human person, personal liberty and freedom of movement guaranteed by Sections 34, 35 and 41 of the 1999 Constitution(as amended) and Articles 5, 6 and 12 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement )Act.
“A declaration that the continued detention, humiliation and maltreatment of the applicant by the Respondents is wrongful, illegal and unconstitutional as it is a violation of the Applicant’s fundamental human right as guaranteed by 1999 Constitution of the Federal Republic of Nigeria (as amended ) and Articles 5, 6 and 12 of the African Charter on Human and Peoples Rights(Ratification and Enforcement )Act.
“A declaration that the act of the Respondents in continued detention of the applicant since August 14, 2023, without charging or arraigning the applicant before any competent court of law is wrongful, illegal, unconstitutional and a violation of the fundamental right of the applicant.
“Alternatively, the applicant seeks an order admitting him to bail pending the conclusion of the investigation of any crime allegedly committed by the applicant and or pending the arraignment of the applicant before a competent court of law on such alleged crime.
“An order of court awarding the sum of N5 million general damages in favour of the applicant against the 1st and 2nd Respondents jointly and severally for unlawful arrest and detention of the applicant from August 14, 2023 to date.
“An order of court awarding the N5 million general damages in favour of the applicant against the 1st 2nd Respondents jointly and severally for mental torture, humiliation, inhuman treatment and psychological trauma inflicted on the applicant while in the custody of the 1st Respondent from the 14th August, 2023, and the Applicant’s continued detention till date at the instruction or knowledge of the 2nd Respondent.
In opposing the Applicant’s application, the 1st Respondent filed a 26-paragraph counter affidavit with 6 exhibits attached and a written address dated and filed on February 12, 2024. It also filed a further and better counter affidavit of 11 paragraphs dated February 29, 2024.
Similarly, the 2nd Respondent on February 8, 2024, through a litigation officer in the Office of the AGF deposed to a 4-paragraph counter affidavit in opposition to the Applicant’s Originating Motion. The 2nd Respondent also a written address on same date in support of its counter affidavit.
In his written address in support of the Originating Motion, the applicant through his counsel formulated three issues for determination to wit :
*Whether the arrest and continued detention, humiliation and maltreatment of the applicant since August 14 , 2023, without charging or arraigning the applicant before any competent court of law is wrongful, illegal, unconstitutional and a violation of the fundamental right of the applicant ?
*Whether the 1st Respondent , based on the alleged interest or instruction of the 2nd Respondent can lawfully continue to keep the applicant in the 1st Respondent’s custody, without preferring any criminal charge against the applicant in law court?
*Whether it is in the interest of justice for the applicant to be granted the reliefs sought in this application?
To buttress his position, the applicant through his counsel referred the court to Sections 35 (1), 35 (4) and 35 (5) of the Constitution of the Federal Republic of Nigeria 1999 and Article 6 of the African Charter on Human and Peoples Rights (Ratification and Enforcement), submitting that the Applicant’s right to personal liberty is guaranteed.
On the other hand, the EFCC (1st Respondent) in its written address filed in opposition to the Applicant’s Originating Motion, raised only one issue for determination to wit : Whether the 1st Respondent carrying out its statutory duties vis-a-vis the detention of the applicant who is a fugitive for the purpose of his extradition constitutes an infringement of the Applicant’s fundamental rights?
It referred the court to Sections 6, 7(a), 8 (5), 13 and 41 of the Economic and Financial Crimes Commission (Establishment )Act No 1 of 2004.
EFCC submitted that by carrying out its duties based on criminal complaint against the applicant, it has not violated the Applicant’s fundamental rights guaranteed under the Constitution.
Citing the case of Dokubo-Asari v FRN, it further contended that the Applicant’s fundamental right to personal liberty is not absolute.
“The Applicant’s story of having health issues is a ploy to escape from Lagos and go into hiding to avoid being extradited ” EFCC submitted.
It submitted that the applicant is being detained in accordance with the Extradition Act of 1966 and Section 5 of the Act.
In its written address, the 2nd Respondent formulated a sole issue for determination to wit : Whether from the facts of this case and the affidavit evidence placed before this court, the applicant can be deemed entitled to the reliefs sought against the 2nd Respondent?
Counsel submitted that “it is trite that he who asserts must prove same, stressing that the applicant has not adduced any sufficient documentary proof or evidence to back up his claims against the 2nd Respondent.
He therefore submitted that having not shown any culpability of the 2nd Respondent in the alleged infringement of the Applicant’s fundamental rights, the 2nd Respondent was wrongly joined as a party in the suit and therefore ought to be struck out for want of any reasonable cause of action against it. The 2nd Respondent relied on the case of Tabiowo v Disu.
It further submitted that there was no dispute or conflict between the applicant and the Attorney General of the Federation that warrants joining of the AGF as a party in the suit.
The presiding judge, Justice Aneke having looked at the processes filed by parties before the court and submissions made by parties, proferred two issues for determination to wit : Whether the 2nd Respondent is a necessary party to the suit; whether the applicant has established the infringement of his fundamental rights against the 1st Respondent and entitled to the reliefs sought against the 1st Respondent in this suit?
On issue one, court noted that the Federal Government was not directly concerned with the complaint of the applicant and no relief was sought against the Federal Government in the action to warrant the joinder of the Attorney General of the Federation as party in the suit.
Ruling on issue one, the judge said, “In the circumstances, the name of the Attorney General of the Federation is hereby struck out from this suit as 2nd Respondent ”
On issue 2, the court noted the reliefs sought by the applicant to enforce his fundamental rights. The court also noted the Sections of the Constitution referred to by the applicant in paragraphs 7 to 12 of his affidavit in support of the application.
Equally, court noted paragraphs 7 to 13 of the Respondent’s counter affidavit which controverted the Applicant’s averrments. It was stated there in the paragraphs that the Federal Bureau of Investigation wrote a petiton against the applicant alleged to be involved in financial sextortion, sexual exploitation, enticement of minor to engage in sexual activity resulting in the suicide of a minor.
Delivering judgement on the suit, Justice Aneke said; “Having carefully considered the submissions and perused the affidavit evidence of parties herein, it is clear that the applicant herein was arrested by the Respondent on the 14th day of August, 2023, based on a petiton of one SCOTT DAHLSTROM, Assistant Legal Attachee to the United States Federal Bureau of Investigation (FBI) which bothered on allegation of the applicant being involved in financial sextortion, sexual exploitation, enticement of a minor to engage in sexual activity resulting in the suicide of a 16 year old high school student of the United States of America and request for extradition.
“It is my considered view that in the peculiar circumstances of this case, that the Respondent is well within its statutory powers to detain the applicant as they have done and should remain with the Commission until he is extradited to the United States of America to stand his trial”
“In the circumstances , the Applicant’s application is hereby accordingly dismissed for lack of merit ” the court held.
