4th September 2020
The Ayo Salami Judicial Commission,
Three Arms Zone,
REQUEST TO REFRAIN FROM RECOMMENDING THE TERMINATION OF CHARGE NO. LD/2415C/16 (FEDERAL REPUBLIC OF NIGERIA v GNAHOUE SOUROU NAZAIRE & 2 ORS) AND CHARGE NO: LD/6147/2017 (FEDERAL REPUBLIC OF NIGERIA v GNAHOUE SOUROU NAZAIRE & ANOR) PENDING BEFORE THE LAGOS STATE HIGH COURT
- We are Solicitors to Madam Rachidatou Abdou on whose behalf we write this letter in respect of the above mentioned criminal cases which are currently pending before the Lagos State High Court.
- Our client who is the complainant in both criminal cases has informed us that the defendants recently submitted a petition to the Honourable Judicial Commission of Inquiry headed by the Honourable Justice Issa Ayo Salami PCA (rtd) where they claimed, albeit falsely, that the suspended Chairman of the Economic and Financial Crimes Commission, Mr Ibrahim Magu abused his office by charging them with forgery and stealing in the Lagos State High Court on the basis of a petition written on her behalf by our law firm.
- We have since confirmed that the Honourable Judicial Commission entertained the petition, reviewed the two criminal cases pending in the Lagos State High Court took evidence from the 2nd defendant who has been dismissed from the company on grounds of fraud.
- The tainted evidence of the defendants was said to have been corroborated by his lawyer who alleged that the Economic and Financial Crimes Commission is currently prosecuting Mr Ricky Tarfa SAN for defending the defendants in the criminal cases.
- To the utter dismay of our client, the defendants who are citizens of Benin Republic, have been boasting in Cotonou that both criminal cases pending against them in the Lagos State High Court would soon be terminated based on the assurance from the Honourable Judicial Commission.
- Embarrassed by the development our client has instructed us to protest the decision of the Honourable Judicial Commission to deny her the opportunity to react to the contemptuous and misleading evidence of the defendants who have deliberately stalled their trial at the Lagos State High Court.
- However, notwithstanding our reservations about the alien procedure adopted by the Honourable Judicial Commission we have assured our client that we shall resist any attempt to divert the course of justice in the criminal cases pending in the Lagos State High Court. Accordingly, we have our client’s instructions to put the record straight for the sake of posterity.
- More so, that she has already given evidence as the complainant in the pending criminal cases before the Lagos State High Court where the defendants are standing trial for forgery, uttering of documents and stealing the sum of N630 million from her company.
- On our own part, we have deemed it fit to defend the integrity of the Lagos State High Court whose competence to hear and determine the pending criminal cases has been challenged by the defendants before the Honourable Judicial Commission.
- Otherwise, a dangerous precedent may be set whereby political authorities will be encouraged to use the instrumentality of judicial and administrative commissions of inquiry to stop the prosecution of criminal suspects involved in serious economic crimes and other grave criminal offences.
- It may interest the Honourable Judicial Commission to know that our client who is a dual citizen of both Benin and Nigeria resides in Cotonou, Benin Republic. Sometime in 2007, she decided to incorporate her company called RANA HAIR PRESTIGE in Nigeria. Out of her own volition, our client made her friend, Mr Gnahoue Sourou Nazaire a co-director in the company.
- Thereafter, the two business partners became close and our client became pregnant shortly after they started dating. But while our client travelled to France to deliver her baby Mr. Nazaire diverted the fund of the company and forged vital documents in order to reduce her shares in the company. Upon her return to the country in May 2012, our client wrote a petition to the Special Fraud Unit of the Nigeria Police Force.
- In the said petition which was written by Akingbolu & Salawu, her counsel at the material time, our client alleged fraud, forgery and stealing of the fund of her company by her partner, Mr Nazaire and a former Managing Director of the company, Mr Senou Modeste.
- The Police investigated the allegations and confirmed that they were true. Even though the defendants were indicted the Police declined to arraign them in court based on their plea to resolve the dispute with our client in an amicable manner. On the basis of the assurance of the defendants our client withdrew her petition from the Police.
- However, the defendants refused to resolve the dispute and threatened thereafter to deal ruthlessly with our client as they boasted that they are “well connected in Nigeria”. It was at that stage that our client briefed us to take over her case.
- We accepted the brief on the condition that our office would collaborate with the law firm of Akingbolu & Salawu to secure justice for her. As soon as she accepted our terms we reviewed the case and petitioned the EFCC via our letter dated December 16, 2013.
- Contrary to the spurious evidence of the defendants before the Honourable Judicial Commission, our client’s petition was submitted to the EFCC under the chairmanship of Mr Ibrahim Lamorde. The EFCC painstakingly investigated the complaint, indicted the defendants and charged them with forgery and uttering of documents at the Lagos State High Court on July 20, 2015.
- The Charge No was LD/1709C/2015 (FRN v Gnahoue Sourou Nazaire &2 Ors) was later amended with the leave of the learned trial judge. However, following the commencement of the criminal proceedings in the Lagos State High Court the defendants filed a fundamental right application (Suit No FHC/L/CS/715/2015) at the Federal High Court seeking to restrain the Attorney-General of the Federation, Inspector General of Police and EFCC from arresting, detaining and persecuting them on the basis of our client’s complaint.
- The application was opposed by the counsel to the Respondents who cited several authorities including the case of Dokubo Asari v Federal Republic of Nigeria (2007) 12 NWLR (Pt 1048) 220 where the Supreme Court had held that “The power of arrest of suspected offenders is vested in the police and no one can take it away from them. This general power invested in the police to arrest and detain suspected criminals is statutory.” Curiously, the Federal High Court presided over by Nasir Yinusa J. ignored the authorities and proceeded to grant the reliefs sought by the applicants.
- It was later established by the EFCC that the judgments were purchased by the applicants’ counsel and that there were regular telephone conversations between the counsel and the Judge when the fundamental rights cases were pending at the Federal High Court.
- Hence, Mr Ricky Tarfa SAN was charged with obstruction of justice contrary to section 97(3) of the Criminal Code Law of Lagos State. We have confirmed that the Honourable Judicial Commission has also taken evidence from the representative of Mr Ricky Tarfa SAN with a view to making a recommendation to the President to direct the Attorney-General of the Federation to terminate the criminal case pending against him at the Lagos State High Court.
- It is on record that the criminal case instituted by the EFCC against the defendants at the Lagos State High Court in July 2015 and the fundamental rights cases filed by the defendants at the Federal High Court were inherited by Mr Ibrahim Magu in November 2015 upon his appointment as the Acting Chairman of the EFCC.
- Therefore, the defendants LIED ON OATH and deliberately set out to pervert the course of justice when they claimed before the Honourable Judicial Commission that our client’s petition was submitted to the EFCC under the leadership of Mr Ibrahim Magu.
- Before approaching the Honourable Judicial Commission the defendants had attempted but failed to frustrate our client from pursuing the criminal cases pending in the Lagos State High Court. In particular, the defendants had written a petition to the Nigeria Immigration Service wherein they alleged that our client is not a Nigerian citizen and that she had provided false information to secure her Nigerian Passport.
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The Nigeria Immigration Service investigated the allegation and dismissed it after confirming that our client is a bonafide Nigerian citizen.
- As if that was not enough, the defendants colluded with a few corrupt policemen at Zone 2, Onikan, Lagos State to deport our client from Nigeria. To achieve the criminal objective the police arrested and charged our client with forging her Nigerian Passport before the Chief Magistrate Court at Igbosere, Lagos State.
- But upon a critical review of the facts of the case the office of the Attorney-General of Lagos State caused the criminal charge to be withdrawn as there was no scintilla of evidence to prove it. Consequently, the learned Chief Magistrate struck out the charge and discharged our client.
- Having failed to use the Nigeria Immigration Service and the Police to deport our client from Nigeria and thereby frustrate their trial the defendants have decided to subvert the Nigerian criminal legal system by praying the Judicial Commission to recommend to the President to direct the Attorney General of the Federation to terminate the criminal cases pending against them in the Lagos State High Court.
- With profound respect, the prayer of the defendants/petitioners cannot be granted by the Honourable Judicial Commission on the following solid legal grounds:
- The review of the criminal cases pending before the Lagos State High Court is not covered by any of the terms of reference listed in the Instrument setting up the Honourable Judicial Commission.
- It is submitted that the Tribunal of Inquiry Act is not a law of general application in the country. Our authority for this submission is the case of Fawehinmi v. Babangida (2003) 12 WRN 1 where the Supreme Court held that “the power to make a general law for the establishment and regulation of tribunals of inquiry in the form of the Tribunals of Inquiry Act 1966 is now a residual power under the 1999 Constitution belonging to the States.
- However, in regard to the Federal Capital Territory Abuja, the power resides in the National Assembly.”Since the evidence of the defendants pertain to the criminal activities carried out by them in Lagos State the President is not competent to authorise the Honourable Judicial Commission to investigate them.
- Notwithstanding that the Honourable Judicial Commission is headed by a retired President of the Court of Appeal it is an inferior tribunal which is subject to the jurisdictional supervision and control of a High Court. To that extent, the Honourable Judicial Commission lacks the competence to review the criminal cases that are pending before the Lagos State High Court.
- In Williams v Dawodu (1988) 4 NWLR (Pt 87) 189 the Court of Appeal held that section 14(2) of the Lagos State Tribunal of Inquiry Law which purported to upgrade the recommendation of a tribunal to that of a High Court is contrary to the judicial powers vested in the courts by section 6 of the Constitution.
- By denying our client the opportunity to challenge the evidence adduced by the defendants the Honourable Judicial Commission has infringed on her fundamental right to a fair hearing and departed from the principles established by the Supreme Court in Garba v University of Maiduguri (1986) 1 NWLR (Pt 18) 550 at 558 where Oputa JSC held that “To constitute a fair hearing whether it be before the regular courts or before Tribunals and Boards of Inquiry the person accused should know what is alleged against him. He should be present when any evidence against him is tendered and he should be given a fair opportunity to correct or contradict such evidence?”
- The power of the EFCC to prosecute the defendants for economic crimes on the authority of the Attorney-General of Lagos State cannot be questioned by the Honourable Judicial Commission. In Frank Amah v Federal Republic of Nigeria(2019) 6 NWLR (Pt 1667) 160 at 188 Kekere-Ekun JSC stated that “The presumption which has not been rebutted, is that the EFCC has the requisite authority, donated by the Attorney-General of Lagos State, to prosecute the appellant for offences allegedly committed under the Criminal Code Law of Lagos State. The authority cannot be questioned. As rightly held by the lower court, this court has taken judicial notice of the fact of the delegation, which is binding on all.”
- As a fact-finding body, this Honourable Judicial Commission is not competent to determine the guilt or otherwise of the defendants who are currently standing trial in the Lagos State High Court. This principle was laid down by the Supreme Court in Sofekun v Akinyemi (1981) 1 NCLR 135 wherein Obaseki said that “It is in the interest of the Government and every individual in this country that the guilt of crime should not be tagged on any individual without a proper trial in the courts of law known as such under the Constitution of the Federal Republic of Nigeria.”
- The Honourable Judicial Commission lacks the power to request the President to order the Attorney-General of the Federation to terminate the criminal proceedings arising from the contravention of the Criminal Code of Lagos State.
- It is trite law that the Attorney General of the Federation is not subject to the control or directive of the President or any authority whatsoever in the exercise of the power to terminate any criminal case under section 174 of the Constitution. See The State v Ilori (1983) 1SCNLR 94 at 111.
- However, since the defendants have been charged under the Criminal Law of Lagos State it is the Attorney-General of Lagos State who is empowered by section 211 of the Constitution to terminate the pending criminal cases pending before the Lagos State High Court in accordance with the principles of law enunciated by the Supreme Court in the case of Anyebe v The State (1986) 1 MWLR (Pt 14) 39.
- It is equally submitted that the Honourable Judicial Commission lacks the vires to review the criminal cases pending in the Lagos State High Court as the President who constituted it has no control over the subject matter.
- Furthermore, the Attorney General of Lagos State who authorised the EFCC to initiate the criminal proceedings is not an agent of the President. In Gafar v Government of Kwara State (2007) 20 WRN 170 the Supreme Court held that “the Federal High Court lacked the jurisdictional competence to entertain the appellant’s application for the enforcement of his fundamental rights as the 1st respondent “which constituted the Commission of Inquiry and issued a White Paper on the report thereof, is not an agency of the Federal Government.”
- Incidentally, the Judicial Commission of Inquiry in the Gafar’s case was headed by Ayo Salami JCA (as he then was).
- In view of the foregoing and having regards to the fact that the constitutional democracy operated in the country rests squarely on the principle of separation of powers, we urge the Honourable Judicial Commission of Inquiry to refrain from further reviewing the criminal cases pending in the Lagos State High Court.
- In particular, the Honourable Judicial Commission should reject the dangerous invitation of the defendants to constitute itself into an Appellate Court over the Lagos State High Court.
- However, if our humble prayer is refused for any reason whatsoever we shall not hesitate to approach the Federal High Court with a view to quashing the proceedings of this Honourable Judicial Commission of Inquiry for reviewing criminal cases that are pending before the Lagos State High Court.
- While awaiting the reply of the Honourable Judicial Commission to this letter, please accept the assurances of our highest esteem and professional regards.
FEMI FALANA SAN, FCI Arb.
- President Muhammed Buhari,
The President & Commander-in-Chief of The Armed Forces,
Federal Republic of Nigeria,
The Presidential Villa,
Three Arms Zone,
- Professor Yemi Osinbajo (SAN),
The Vice President,
Federal Republic of Nigeria,
The Presidential Villa,
Three Arms Zone,
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