The Federal High Court, Lagos, presided over by Hon. Justice Olatoregun Ishola, will on December 12, 2016, deliver its ruling on the application filed by Chief Government Ekpemupolo, alias Tompolo, to refer his case against the Federal Government of Nigeria, to the Court of Appeal, for its opinion on certain questions of law. At the resumed hearing of the case on October 25, 2016, the Federal Government was represented by the office of the Hon. Attorney-General of the Federation, through his lawyer, Mr. Tolu Mukoro whilst Mr. I.B. Mohammed represented the Economic and Financial Crimes Commission (EFCC).

Addressing the court orally on points of law, Mr. Mukoro argued that the application of Tompolo should not be granted as section 45 of the 1999 Constitution permits the government to enact any law, such as the Administration of Criminal Justice Act (ACJA ) that is reasonably justifiable in a democratic society and Tompolo cannot seek to strike down the ACJA. He submitted further that since Tompolo has been consistently absent in the main criminal proceedings leading to this civil suit, he should not be allowed to take benefit of his wrong doing to obtain any favour from the court.

In his own argument, Mr. I.B Mohammed stated that the EFCC would rely on paragraph 23 of its substantive counter-affidavit, which has aptly captured their arguments against the application for referral. He submitted further that since the suit was commenced under the Fundamental Rights Enforcement Procedure Rules, it cannot be referred to the Court of Appeal, as there is no provision in the said fundamental rights rules to justify such transfer.

Replying, Mr. Adegboruwa, leading Tosin Adesioye, for Tompolo, countered that section 45 of the 1999 Constitution cited by Mr. Mukoro is inapplicable, since it specifically excludes section 36 of the 1999 Constitution, under which Tompolo filed the case. He argued further that Tompolo is not seeking to strike down the entire ACJA but rather two of its provisions in sections 221 and 306, which he argued are unconstitutional. In response of the EFCC, Adegboruwa stated that the application for reference was brought under sectin 295(2) of the 1999 Constitution which having not specified the type of proceedings that can be referred, should be of general application to all cases before the court. Adegboruwa stated that the EFCC could not rely on its main counter-affidavit at the interlocutory stage since the substantive case is not being argued yet.

After taking argument from all counsels, the court adjourned the case to December 12, 2016, for ruling.

It will be recalled that on Friday, April 8, 2016, Tompolo filed a fresh action before the Federal High Court, in Lagos, asking for an interpretation and nullification of certain sections of the Administration of Criminal Justice Act, 2015, which he stated affected his constitutional rights. Earlier on January 14, 2016, the Federal High Court, coram the Honourable Justice Ibrahim Buba, had issued a warrant for the arrest of Tompolo. On January 27, 2016, Tompolo filed an application before the Court, to set aside the said warrant of arrest. On February 8, 2016, the said application was argued and dismissed by the Court. Tompolo thereafter filed an appeal against the Ruling of the Court, on February 18, 2016. Tompolo’s appeal was entered at the Court of Appeal on March 3, 2016, following which his team of legal practitioners have filed the Appellant’s brief of argument in the said appeal, awaiting the response of the EFCC.

In this new case, filed against the Federal Government of Nigeria, the Attorney-General of the Federation, the EFCC, the Inspector-General of Police, the Chief of Army Staff, the Chief of Naval Staff and the Chief of Air Staff, Tompolo is contending that sections 221 and 306 of the Administration of Criminal Justice Act are invalid and unconstitutional, in so far as they seek to prevent the court from exercising its jurisdiction to entertain any objection to a criminal charge and an application for a stay of proceedings pending appeal. He is thus asking the Court to stop his further trial until the determination of these issues.

The Federal Government of Nigeria has asked the Federal High Court, Lagos, to dismiss the case filed by Tompolo for being an abuse of process and an attempt to shield Tompolo from his trial. The EFCC on its part had asked the court to dismiss Tompolo’s case since he has exercised his constitutional right of appeal against the order of court for his arrest. Subsequently on May 20, 2016, Tompolo through Adegboruwa, filed another application before the Court, relying on section 295(2) of the 1999 Constitution, for reference of the points of law raised in the main application to the court of appeal.

Section 295(2) of the Constitution provides as follows:

“Where any question as to the interpretation or application of this constitution arises in any proceedings in the Federal High Court or a High Court, and the court is of (sic) opinion that that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Court of Appeal; and where any question is referred in pursuance of this subsection, the court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision.”

The substantial questions of law for which the Tompolo seeks the Court’s reference to the Court of Appeal are as follows:

(1) Whether sections 221 and 306 of the Administration of Criminal Justice Act, 2015, are in consonance with sections 4 (8) 6 and 36 of the Constitution the Federal Republic of Nigeria, 1999.

(2) Whether sections 221 and 306 of the Administration of Criminal Justice Act, 2015, are in consonance with Article 7 (1) (d) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Laws of the Federation of Nigeria, 2004.

(3) Whether sections 221 and 306 of the Administration of Criminal Justice Act, 2015, do not constitute flagrant violations of the constitutional right of the Applicant, guaranteed under section 36 of the Constitution the Federal Republic of Nigeria, 1999 and Article 7 (1) (d) of the African Charter on Human and Peoples’ Rights.

For the records, sections 221 and 306 of the Administration of Criminal Justice Act, state as follows:

“221. Objections shall not be taken or entertained during proceedings or trial on the ground of an imperfect or erroneous charge.”

While Section 306 then goes further to state thus:

“306. An application for stay of proceedings in respect of a criminal matter before a court shall not be entertained”.

In the new case filed, Suit No. FHC/L/CS/499/2016, Tompolo is seeking the following reliefs, from the Court:

A. A DECLARATION that section 221 of the Administration of Criminal Justice Act, 2015, is to the extent that it seeks to be an absolute bar to any objection to a criminal charge or information, already filed, especially Charge No.FHC/L/553C/2015 – Federal Republic of Nigeria v Government Ekpemupolo (Alias Tompolo) & 9 Ors., and Charge No. FHC/L/31C/2016 – Federal Republic of Nigeria v Ekpemupolo Chief Government Oweize& 12 Ors., or to be filed against the applicant, constitutes a flagrant violation of the applicant’s fundamental right to fair hearing as guaranteed under Sections 36(1), (4) & (6) as well the inherent powers of a court of law under Section 6(6)(a)(b) of the Constitution of the Federal Republic of Nigeria, 1999 and Article VII of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Laws of the Federation of Nigeria, 2004 and is therefore illegal, unconstitutional, null and void.

B. A DECLARATION that section 306 of the Administration of Criminal Justice Act, 2015 is to the extent that it seeks to be an absolute bar to an application for a stay of proceedings pending appeal to a higher court, in relation to a criminal charge or information, already filed, especially Charge No.FHC/L/553C/2015 – Federal Republic of Nigeria v Government Ekpemupolo (Alias Tompolo) & 9 Ors., Charge No. FHC/L/31C/2016 – Federal Republic of Nigeria v Ekpemupolo Chief Government Oweize & 12 Ors., or to be filed against the applicant, constitutes a flagrant violation of the applicant’s fundamental right to fair hearing as guaranteed under Sections 36(1), (4) & (6) ) as well the inherent powers of a court of law under Section 6(6)(a)(b) of the Constitution of the Federal Republic of Nigeria, 1999 and Article VII of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Laws of the Federation of Nigeria, 2004 and is therefore illegal, unconstitutional, null and void.

C. A DECLARATION that the 1st, 2nd and 3rd respondents, are not entitled to deploy, use, cite or in any other manner rely upon sections 221 and 306 of the Administration of Criminal Justice Act, 2015 in the prosecution of any criminal charge or information, already filed, especially Charge No.FHC/L/553C/2015 – Federal Republic of Nigeria v Government Ekpemupolo (Alias Tompolo) & 9 Ors., Charge No. FHC/L/31C/2016 – Federal Republic of Nigeria v Ekpemupolo Chief Government Oweize& 12 Ors., or any other criminal charge or information, to be filed, against the applicant, in any manner that will constitute a flagrant violation of the applicant’s fundamental right to fair hearing as guaranteed under Sections 36(1), (4) & (6) of the Constitution of the Federal Republic of Nigeria, 1999 and Article VII of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Laws of the Federation of Nigeria, 2004.

D. A DECLARATION that the Respondents are not entitled to file, initiate, prosecute or in any other manner pursue any criminal charge or information, against the applicant, in any manner that will constitute a flagrant violation of the applicant’s fundamental right to fair hearing as guaranteed under Sections 36(1), (4) & (6)) as well the inherent powers of a court of law under Section 6(6)(a)(b) of the Constitution of the Federal Republic of Nigeria, 1999 and Article VII of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Laws of the Federation of Nigeria, 2004.

E. AN INJUNCTION restraining the 1st, 2^nd & 3^rd respondents whether by themselves or by their servants, agents or privies or otherwise howsoever, from filing or further filing, prosecuting or further prosecuting, any criminal charge or information, especially Charge No.FHC/L/553C/2015 - Federal Republic of Nigeria v Government Ekpemupolo (Alias Tompolo) & 9 Ors., Charge No. FHC/L/31C/2016 – Federal Republic of Nigeria v Ekpemupolo Chief Government Oweize & 12 Ors., against the applicant, the prosecution of which may constitute a flagrant violation of the applicant’s fundamental right to fair hearing as guaranteed under Sections 36(1), (4) & (6) of the Constitution of the Federal Republic of Nigeria, 1999 and Article VII of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Laws of the Federation of Nigeria, 2004.

F. AN INJUNCTION restraining the Respondents whether by themselves or by their servants, agents or privies or otherwise howsoever, from initiating, filing, prosecuting or further prosecuting any criminal charge or information, against the applicant, which may constitute a flagrant violation of the applicant’s fundamental right to fair hearing as guaranteed under Sections 36(1), (4) & (6) of the Constitution of the Federal Republic of Nigeria, 1999 and Article VII of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Laws of the Federation of Nigeria, 2004.

G. AN ORDER nullifying, voiding, striking down and expunging sections 221 and 306 from the Administration of Criminal Justice Act, 2015 to the extent of their inconsistency with the Constitution of the Federal Republic of Nigeria, 1999.”

•Photo shows Tompolo.

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