Senator Bukola Saraki
“The application for injunction is dangerous as it is designed to confer permanent immunity on [Senator Saraki] and thereby shield him from arrest, investigation and prosecution,” the IG said in the affidavit, which was filed on his behalf by Superintendent Akinbayo Olasoji. “No court in Nigeria has the power to grant the illegal injunction. Even as a governor the Plaintiff was liable to be investigated as his successor is now under investigation,” the affidavit said.
As SaharaReporters reported yesterday, the former Kwara State governor, who is desperate to elude police interrogation, on Monday tried to dupe a Federal High Court judge into granting a temporary court injunction, filing an exparte motion to prevent the police from grabbing him to answer to charges that he directly benefited from a N21 billion bank loan fraud. The judge declined the request.
Mr. Abubakar said in his affidavit that in a letter 3rd April, he 2012 invited Saraki Lagos to assist in the investigation of a case of conspiracy, forgery and stealing of the sum of N21 billion belonging to Joy Petroleum Ltd, following a petition from Joy Petroleum on the refusal of access to their account at Intercontinental Bank.
Subsequent investigation revealed, among others, that
• withdrawals were made from the account during the period the former Managing Director was incapacitated and even after his death, although the deceased was the sole signatory;
• A credit transfer was made from the account on 18th February 2010 when the former Managing Director was already dead.
• The account was closed by Abdul Adamu, Saraki’s aide; and
• A loan sum of N9, 700,000,000.00 (Nine Billion, Seven Hundred Million, Naira) was written off prior to the closure of the account.
The IG points out in the affidavit that Saraki’s immunity as governor ceased on May 29, 2011, when his tenure ended. “As a Senator he is not entitled to immunity as he is being investigated in the theft of N21 billion and waiver of several billions of Naira of Bank loans by Intercontinental Bank Plc when the cronies of the Plaintiff was the Managing Director of the Bank,” Mr. Abubakar averred.
Citing various legal authorities, Mr. Abubakar argued that he has inherent powers to arrest, investigate and prosecute the Plaintiff upon reasonable suspicion that he has committed a criminal offence pursuant to Section 4 of the Police Act, and submitted that that section 35 of the Constitution is not absolute in that the Inspector-General is empowered to violate the right of any person in Nigeria to personal liberty if there is any reasonable suspicion that he committed an offence.
Below is the text of the affidavit:
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ABUJA
SUIT NO:FHC/ABJ/CS/231/12
BETWEEN
SENATOR (DR.) BUKOLA SARAKI )…. PLAINTIFF
AND
INSPECTOR-GENERAL OF POLICE )….. DEFENDANT
COUNTER-AFFIDAVIT IN OPPOSITION TO THE MOTION DATED 23RD APRIL, 2012
I, AKINBAYO OLASOJI, Male, Nigerian Citizen and Superintendent of Police, Special Fraud Unit of the Nigeria Police Force, Abuja do hereby make oath and state as follows:
1. I am an officer of the Defendant and as such I am familiar with the facts of this case.
2. I have the consent and authority of the Defendant to swear to this affidavit.
3. That a petition against Intercontinental Bank was submitted by Joy Petroleum Nig. Ltd. through its Managing Director, Mr. Paul Obahor, to the Defendant on the refusal of access to their account domiciled in Intercontinental Bank. Attached and marked as Exhibit “A” is a copy of the petition of Joy Petroleum Nig ltd. dated September 11, 2011.
4. That based on the petition, investigation commenced and the Special Fraud Unit of the Defendant requested that Intercontinental Bank forward all relevant documents related to the account of Joy Petroleum Nig. Ltd. domiciled with the Bank.
5. That Intercontinental Bank reluctantly but consequently made available to the Defendant the Statements of the Account and scanty documents relating to the account and investigations revealed certain flaws and inconsistencies which include:
i. Withdrawals were made from the account during the period the former
Managing Director was incapacitated and after his death. Yet the deceased was the sole signatory.
ii. A credit transfer was made from the account on 18th February 2010 at a time the former Managing Director was dead.
iii. The account was closed by Abdul Adamu, an aide of the Plaintiff.
iv. A loan sum of N9,700,000,000.00 (Nine Billion, Seven Hundred Million, Naira) was written off prior to the closure of the account.
6. That officials of the Bank, now Access Bank were invited by the Defendant to aid investigation and subsequently various documents were made available for the Defendant’s perusal.
7. The former Managing Director of Intercontinental Bank Plc, Mr. Erastus Akingbola has also made statements to the Police.
8. The agents of the Plaintiff have threatened to kill the complainant if he does not withdraw his complaint from the Defendant
9. That internal memos studied by the Defendant revealed the following facts:
i. That Joy Petroleum Ltd., Dicetrade Nigeria Ltd. and Likam Nig. Ltd share one registered office address, No 10, Abebe Village, Iganmu, Lagos and operate one office address, No 30 Saka Tinubu Street, Victoria Island, Lagos (property of the Plaintiff).
ii. That the Plaintiff had used his office as the Governor of Kwara State to influence the purchase of the above named companies’ stock by the Kwara State Ministry of Finance.
iii. That the Plaintiff at material times was a promoter of Joy Petroleum Ltd. and on several occasions used his personal properties to guarantee loans taken by the companies.
iv. That amongst the names in the documentations of the Bank included the wife of the Plaintiff, Toyin Saraki and the former Commissioner of Finance and current Governor of Kwara State, Abdufattah Ahmed.
v. That a loan obtained by Joy Petroleum ltd. was lumped together with Dicetrade Nigeria Ltd and Likam Ltd. by the Bank which were separately obtained by the companies.
vi. That the stock purchased by the Kwara State Ministry of Finance was used as collateral for the loan approved to Joy Petroleum Ltd. by the Bank.
vii. That the Bank was aware of the status of the company’s promoter and had knowledge of the transactions of the accounts of the companies.
10. That the Defendant was informed of these findings via the subsequent memo dated 13th February, 2012 and 2nd April 2012. Attached and marked as Exhibit “B” and “C” are the memos dated 13th February, 2012 and 2nd April, 2012.
11. That based on the findings, the Defendant in line with its statutory duty commenced an investigation into the role and activities of the Plaintiff in the company by inviting him to assist the said investigation by stating his position in respect of the findings.
12. That the Plaintiff caused to be published in the dailies that he has already obtained an interim injunction by this Honourable Court restraining the Defendant from proceeding with its statutory duty of investigation and possible prosecution of suspects of a crime committed. Attached and marked as Exhibit “D” is a copy of page 14 of the Punch Newspaper dated April 15, 2012.
13. That the Plaintiff had mismanaged Societe Generale Bank which led to the eventual collapse of the Bank.
14. That the Plaintiff had previously been charged for forgery and fraud in relation to Societe General Bank of Africa.
15. That it is in the interest of justice if this application is dismissed as what the Plaintiff seeks is to impinge on the statutory duty of the Defendant.
16. Mr. Femi Falana, of the Defendant’s Counsel informed me and I verily believe him as follows:
a. The Plaintiff’s immunity ended in May 29, 2011 when he ceased to be the Kwara State Governor by effluxion of time.
b. The Plaintiff does not enjoy immunity as a Senator of the Federal
Republic of Nigeria.
17. That I make this declaration in good faith and in accordance with the Oaths Act.
………………
DEPONENT
SWORN TO at the Federal
High Court Registry, Abuja
This……….day of April, 2012
BEFORE ME
COMMISSIONER FOR OATHS
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ABUJA
SUIT NO:FHC/ABJ/CS/231/12
BETWEEN
SENATOR (DR.) BUKOLA SARAKI )…. PLAINTIFF
AND
INSPECTOR-GENERAL OF POLICE )….. DEFENDANT
WRITTEN ADDRESS
1.00 INTRODUCTION
1.01 The Plaintiff / Applicant by his Motion on Notice dated 23td of April 2012 had sought an Interim Injunction restraining the Defendant herein, his officers and agents from threatening to arrest, impeding the liberty; detaining or in any other manner infringing on the rights of the Applicant pending the determination of the substantive suit.
1.02 The Defendant by its letter dated 3rd April 2012 invited the Plaintiff / Applicant to its Lagos Office to assist in the investigation of a case of conspiracy, forgery and stealing of the sum of N21 billion belonging to Joy Petroleum Ltd.
1.03 The Plaintiff / Applicant’s application is supported by 6-paragraph affidavit and an undated written address in support of his application.
1.04 In the Defendant’s counter-affidavit it has been shown that the Plaintiff’s immunity as a Governor ceased on May 29, 2011. As a Senator he is not entitled to immunity as he is being investigated in the theft of N21 billion and waiver of several billions of Naira of Bank loans by Intercontinental Bank Plc when the cronies of the Plaintiff was the Managing Director of the Bank.
1.05 It is the case of the Defendant that this Honourable Court lacks the jurisdiction competence to shield the Plaintiff from arrest, investigation and prosecution. Even as a Governor he was liable to be investigated.
2.00 ISSUES FOR DETERMINATION
1. Whether the Defendant has the power to arrest, investigate and prosecute the Plaintiff upon reasonable suspicion that he has committed a criminal offence.
2. Whether in the circumstances of this case the Plaintiff / Applicant is entitled to the prayer sought in his application for interim injunction.
3.00 ARGUMENTS
3.00 ISSUE ONE: Whether the Defendant has the power to arrest, investigate and prosecute the Plaintiff upon reasonable suspicion that he has committed a criminal offence.
3.01 We submit that the Defendant has inherent powers to arrest, investigate and prosecute the Plaintiff upon reasonable suspicion that he committed a criminal offence pursuant to Section 4 of the Police Act. We also submit that section 35 of the Constitution is not absolute in that the Defendant is empowered to violate the right of any person in Nigeria to personal liberty if there is any reasonable suspicion that he committed an offence. See Ogor v. Kolawole (1983) 1 NCR 342; (1985) 6 NCLR 534.
3.02 In the same vein, the Court of Appeal has decried the dangerous practice of rushing to the High Court to prevent the police from arresting, investigating and prosecuting criminal suspects. That was in the case of the Attorney-General of Anambra State v. Chief Chris Uba (2005) 33 WRN 191 where Bulkachuwa JCA held that
“For a person, therefore, to go to court to be shielded against criminal investigation and prosecution is an interference of powers given by the Constitution to law officers in the control of criminal investigation. The Plaintiff has no legally recognizable right to which the court can come to his aid. His claim is not one that the Court can take cognizance of for it has disclosed no cause of action. The Plaintiff cannot expect a judicial fiat preventing a law official in the exercise of his constitutional power.”
3.03 It is further submitted that the State has an unequivocal power to derogate from the fundamental rights of citizens to personal liberty where they are alleged to have committed criminal offences. As the fundamental rights guaranteed in the Constitution are not absolute there are derogations that have been recognized in the interest of public order, public safety or public morality. One of such derogations is provided for in Section 35 (1) (c ) of the 1999 Constitution which states that the right to personal liberty of any person can be justifiably violated “for the purpose of bringing him before a Court in execution of the order of a court or upon reasonable suspicion of having committed a criminal offence.”
3.04 In this case the Defendant is investigating the circumstances of the theft of N21 Billion of Joy Petroleum Limited and the illegal waiver of the loans of several billions of Naira taken from the Intercontinental Bank Plc. by some companies promoted by the Plaintiff but operated by his aides while he was the Governor of Kwara State from May 2003 – May 2011. The said loans were collaterized with the properties of the Plaintiff. He also used his position as the Governor of Kwara State to influence the purchase of the stock of the said companies through the Kwara State Ministry of Finance. The Plaintiff was involved in the mismanagement in the granting of unauthorized loans of several billions of Naira which led to the collapse of the Societe General Bank of Nigeria.
3.05 In Ekwenugo v. F.R.N. (2001) 6 NWLR (PT 708) 171 the Court of Appeal held that:
“If there is a reasonable suspicion that a person has committed an offence his liberty may be impaired temporarily. In the same vein, a person’s liberty may be tampered with so as to prevent him from committing an offence. In short it is clear that no citizen’s freedom is absolute. The freedom or liberty of a citizen ends where that of the other man starts.”
3.06 In that case, while enjoining judges to strive to operate the law for the attainment of social engineering Fabiyi JCA said “Nigerian judges do not operate in utopia. We operate in Nigeria. And no Nigerian judge can rightly claim he has not heard that Transparency International rated our nation as the most corrupt in the whole universe in the year 2000. This is ear-aching. Should judges, in the prevailing circumstances, pat Advance Fee Fraud accused persons on the back under the cloak of human rights? I think not.”
3.07 In Attorney-General, Abia State v. Attorney-General of the Federation (2006) 16 NWLR (PT 1005) 265 at 389 (Per Tobi JSC) warned every potential treasury looter to desist from his nefarious activities as “the Independent Corrupt Practice and Other Offences Commission (ICPC) and the Economic and Financial Crimes Commission (EFCC) are watching him very closely and will, without notice, pounce on him for incarceration after due process.”
3.08 Since the immunity of the Plaintiff ceased on May 29, 2011 he cannot be turned to an outlaw in Nigeria. The dangerous reliefs sought by him should be refused by this Honourable Court. Otherwise, armed robbers and boko haram suspects will soon be asking for interim, interlocutory and perpetual injunctions to stop their arrest and prosecution.
4.01 ISSUE TWO: Whether in the circumstances of this case the Plaintiff / Applicant is entitled to the prayer sought in his application for interim injunction.
4.02 We submit that a careful perusal of the prayer sought in the motion together with the substantive reliefs in the Originating Summons, particularly relief 3 in the Originating Summons reveals that the effect of the injunction is the same as that sought in the substantive suit.
4.03 Indeed, there are a plethora of authorities to the effect that courts should be wary of granting reliefs sought in the substantive suit at an interlocutory stage. We refer your Lordship to the case of Nnamdi Azikwe University Akwa v. Nweke (2008) 1 NWLR (PT 1069) 504.
4.04 The Respondent humbly urges this Honourable Court to refuse this application for injunction because where a trial judge delves into and determine the substantive issue when considering an interlocutory matter and even if he has rightly determined the interlocutory matter before him, he cannot dispassionately revisit the substantive issue and be expected to take an opposite view from his original stand in the matter. This is because if the trial judge is allowed to revisit the substantive issue at any stage of the trial, it will no doubt amount to a judge sitting on appeal in his earlier decision on the substantive matter. This will surely outrage the sense of justice of an independent observer. See the case of University Press Ltd. v. I.K. Martins (Nig) Ltd. (2000) 4 NWLR (PT 654) 584 at 595 paras E-F 600, paras G per Achike JSC.
4.05 On the above premises, the Defendant respectfully urgeS this Honourable Court to dismiss the Applicant’s application for injunction.
4.06 It is trite that every application for injunction calls for the exercise of the discretion of the Court seized of the matter which must be exercised judicially and judiciously and no one case can be authority for another, as this would be tantamount to fettering the discretion of the Court. We refer the Court to the case of I.G.P. v. Fayose (2007) 9 NWLR (PT 1039) 263, at 269 and 278.
4.07 In the locus classicus decision of Kotoye v. CBN (1989) 1 NWLR(PT 98) 419 at 411 para C-H, the Court laid down the conditions which an applicant for interlocutory injunction must satisfy as follows:
a. The Applicant must have a legal right which has been infracted or being threatened.
b. There must be a serious issue to be tried.
c. Damages must not be an adequate remedy for the Applicant’s injury
d. The balance of convenience must weigh in favour of the Applicant.
e. The Applicant must give a satisfactory undertaking as to damage.
f. The Applicant’s conduct must not be reprehensible
4.08 Existence of Legal Right
At this juncture, the pertinent question that calls for answer is that “does the Plaintiff / Applicant have a legal right to restraining the Defendant or his agents from carrying out their statutory duties?”
4.09 We refer the Honourable Court to the provisions of section 4 of the Police Act (CAP P19) Laws of the Federation of Nigeria, 2004 which provides as follows:
“The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by or under the authority of this or any other act”.
4.10 It suffices to say that with the above provision of the Police Act, the Plaintiff does not posses any legal right to impede the Defendant or any of its agent from carrying on their statutory duties as recognized by the Police Act.
4.11 The Plaintiff having failed to demonstrate to this Honourable Court that he has a legal right against being invited or investigated by the Defendant, we submit that his application for injunction fails and ought to be dismissed with substantial costs
4.12 Serious / Substantial Issues
4.13 We submit that the invitation of the Plaintiff / Applicant by the Defendant via its letter of 3rd April 2012 upon which the Plaintiff premised his action has not shown that there is any serious issue or issues to be tried.
4.14 It is further submitted that mere invitation of the Plaintiff by the Defendant’s agent is not tantamount to a breach or threatened breach of the Plaintiff’s fundamental right to dignity as argued by the Plaintiff and we urge the Court to so hold.
4.15 A cursory look at exhibit A (i.e Letter of Invitation from the Defendant) reveals that there was no threat to arrest or detain the Plaintiff. Paragraph 2 of the letter expressly states that the Plaintiff is being invited by the Defendant to “assist” the Defendant’s investigation.
4.16 The letter of Invitation was dated 3rd March, 2012 and up till date the Plaintiff has neither been arrested nor detained.
4.17 In the case of Woluchem v. Wokome (1974) 3 SC, 153, the Court succinctly stated as follows:
“The trial judge should have satisfied himself of the existence of some legal rights of the respondent and prima facie a threatened infringement of those rights before granting them an order of injunction”
See also Ladunni v. Kukoyi (1972) 3 SC 31 at 35.
4.18 Balance of Convenience
4.19 Balance of convenience has been described as the balance of the risk of doing an injustice. In Kotoye v. CBN (supra) at page 422, the Court held that the Applicant for an injunction must show that the balance of convenience is on his side, that is, that more justice will result in granting the application than refusing it.
4.20 As clearly borne out n paragraph 4 of the Affidavit in Support of the Plaintiff’s motion on Notice, the Plaintiff has failed to show that the injury to be suffered is on his side.
4.21 Clearly, the balance of convenience is in actual fat on the side of the Defendant because substantial injustice will be occasioned to the Defendant if this Honourable Court restrains the Defendant or any of its agents from carrying out its statutory functions as stipulated in the Police Act and we urge the Court to so hold.
4.22 In Obeya Memorial Hospital v. AG of the Federation (1987) 3 NWLR (PT 60) 325, the Court held that the need for a protection by way of an interlocutory injunction must be weighed against the corresponding need of the Defendant to be protected against injury resulting from his having been prevented from exercising his legal rights for which he could not be adequately compensated in damages if the uncertainty were resolved in the Defendant’s favour at trial.
4.23 The Defendant humbly submit that the Plaintiff has failed to show that the nature of the damages it will suffer if the court refuses the grant of the order of injunction sought and therefore his application should be refused.
4.24 Irreparable Damage
4.25 The Defendant respectfully submits that there is nothing in the affidavit in support of the Plaintiff’s motion to show that the loss which the Plaintiff may suffer is irreparable. All he was being invited by the Police to embarrass him.
4.26 Undertaking as to Damages
4.27 The law is clear that an Applicant for injunction, must not only show a willingness to give an undertaking as to damages but must demonstrate that he has the ability to do so. Therefore the affidavit in support of such an application ought to indicate the following:
a. That the Applicant is prepared to give an undertaking in damages.
b. The means at his disposal or who would guarantee him to be able to meet the undertaking.
See Ita v. Nyang (1994) 1 NWLR (PT 318) 56 at 67 para H.
4.28 At page 67 para E-F, Justice Uwafor cited with approval the pronouncement of Nnaemeka Agu JSC in the case of Onyesoh v. Nnebedum (1992) 3 NWLR (PT 229) 315 at 344 – 345 where it was held as follows:
“I wish to point out straight away that although, as I stated away that although, as I stated in Kotoye v. CBN & Ors. (1989) 1 NWLR (PT 89) 419 at 450:
‘an undertaking as to damages is the price which every applicant for an interlocutory injunction has to pay for it and that, same in recognized exceptions, it ought not to be granted if no undertaking has been given….. it renders the order liable to be set aside”.
5.00 CONCLUSION
5.01 In this case the Plaintiff has informed the whole world that this Honourable Court granted the application being sought now by him. So, this Honourable Court has been presented with a fait accompli.
5.02 In any case, the application for injunction is dangerous as it is designed to confer permanent immunity on the Plaintiff and thereby shield him from arrest, investigation and prosecution. No court in Nigeria has the power to grant the illegal injunction. Even as a governor the Plaintiff was liable to be investigated as his successor is now under investigation.
5.03 This Honourable Court should decline the injunction sought by the Plaintiff.
6.00 LIST OF AUTHORITIES
1. Nnamdi Azikwe University Akwa v. Nweke (2008) 1 NWLR (PT 1069) 504.
2. University Press Ltd. v. I.K. Martins (Nig) Ltd. (2000) 4 NWLR (PT 654) 584 at 595 paras E-F 600, paras G
3. I.G.P. v. Fayose (2007) 9 NWLR (PT 1039) 263, at 269 and 278.
4. Kotoye v. CBN (1989) 1 NWLR(PT 98) 419 at 411 para C-H,
5. Woluchem v. Wokome (1974) 3 SC, 153
6. Ladunni v. Kukoyi (1972) 3 SC 31 at 35.
7. Obeya Memorial Hospital v. AG of the Federation (1987) 3 NWLR (PT 60) 325,
8. Ita v. Nyang (1994) 1 NWLR (PT 318) 56 at 67 para H.
9. Onyesoh v. Nnebedum (1992) 3 NWLR (PT 229) 315 at 344 – 345
10. Ogor v. Kolawole (1983) 1 NCR 342; (1985) 6 NCLR 534.
11. Attorney-General of Anambra State v. Chief Chris Uba (2005) 33 WRN 191
12. Ekwenugo v. F.R.N (2001) 6 NWLR (PT 708) 171
13. Attorney-General, Abia State v. Attorney-General of the Federation (2006) 16 NWLR (PT 1005) 265 at 389
Dated this……..day of April, 2012
…………………………………..
OLUSOLA EGBEYINKA ESQ.
FALANA & FALANA’S CHAMBERS
DEFENDANT’S COUNSEL
22, MEDITERRANEAN STREET,
IMANI ESTATE,
OFF SHEHU SHAGARI WAY,
MAITAMA DISTRICT, ABUJA
FOR SERVICE ON:
THE PLAINTIFF’S COUNSEL
R.A LAWAL RABANA (SAN)
R.A LAWAL RABANA & CO.
SUIT C17, MAINA COURT
PLOT 252A, HERBERT MACAULAY WAY,
CENTRAL BUSINESS DISTRICT,
ABUJA.
No comments:
Post a Comment