Following the recent action of the National Judicial Council (NJC) recommending the compulsory retirement of Honourable Justice Yunusa to the President, several media platforms have called for the hands and limps of the learned judge. At page 3 of The Punch Newspaper of Tuesday, April 5, 2016, the Newspaper reported that the National Judicial Council queried Justice Yunusa following a petition by a civil society group known as Civil Society Network Against Corruption (hereinafter simply referred to as “the Petitioner”). According to the Punch publication, the Petitioner had in its petition dated December 15, 2015 “accused the judge of consistent refusal to abide by judicial precedents laid down by the apex court, in granting orders and injunctions against the EFCC”. One of the cases referred to in the Punch publication is FHC/L/CS/1269/2015 (Honourable Shamsudeen Abogun V. EFCC & Ors).
The Punch publication further reported that the Petitioner also alleged that the decision of Justice Yunusa in the referred cases, including FHC/L/CS/1269/2015 (Honourable Shamsudeen Abogun V EFCC & Ors.), “will undoubtedly serve as a leeway for unscrupulous and corrupt individuals, who will stop at nothing to truncate their arrest, investigation and prosecution by the appropriate law enforcement agencies”.
It is important to review Hon. Abogun’s case in the light of the recent developments:
- Sometime in 2010, by a Deed of Assignment, a parcel of land at Alasia village, via Ajah/Eti-osa Local Government Area of Lagos State measuring 7201.263 square meters was assigned to Al-Wajud Nigeria Limited by the Olumegbon Chieftaincy Family. Hon. Abogun is the Chief Executive Officer of Al-Wajud Nigeria Limited.
- Al-Wajud Nigeria Limited thereafter assigned its title to the parcel of land to several individuals including the Redeemed Christian Church of God (hereinafter simply referred to as “RCCG”).
- Before payment was made for the land, RCCG conducted due diligence on Hon. Abogun’s title and was satisfied that there are no encumbrances to his title and on the land. RCCG consequently paid for the land, took possession, erected a church thereon and commenced worship on same. RCCG enjoyed quiet possession of the parcel of land for over two years until some agents and officers of Atlantic Nominees Limited, in conjunction with armed military personnel, invaded the parcel of land, destroyed all the developments on the land and forcefully took possession thereof.
- Consequent upon the trespass, Al-Wajud Nigeria Limited instituted an action in Suit No. LD/716/2014 (Al-Wajud Nigeria Limited & Anor v. Atlantic Nominees Limited & 4 Ors.) to challenge the trespass and secure its unassigned interests on the land. Hon. Abogun advised all his assignees, including RCCG, to file similar actions in court challenging the trespass.
- Rather than commencing an action in a court of competent jurisdiction, RCCG caused the EFCC to arrest and detain Hon. Abogun for eight days. While Hon. Abogun was in EFCC custody, he was compelled to make an undertaking that he would refund the monies paid by RCCG for the land.
- Hon. Abogun was only released on the eight day when he paid the sum of N5,000,000 (Five Million Naira) representing the first tranche of the refund he under duress undertook to pay.
- The summary of Hon. Abogun’s argument before Justice Yunusa was that the matter referred to the EFCC by RCCG relates to two main issues of law. On the one hand, it is contractual (land transaction) and on the other hand, it relates to the tort of trespass to land. The two issues can only be determined by a court of competent jurisdiction and not EFCC.
- The acts of EFCC by forcibly recovering the monies paid by RCCG to Hon. Abogun as consideration for the land is unconstitutional and ultra vires the powers of EFCC.
Justice Yinusa’s Judgment
Having considered the case of Hon. Abogun and the response filed by EFCC, Justice Yinusa at pages 19 and 20 of the judgment delivered on the 11th of November, 2015 held, inter alia, that;
“The application before the court is a fundamental right issue, wherein the Applicant is seeking for the enforcement of his fundamental rights. By the deposition in paragraphs 10 of the affidavit in support, the applicant was arrested on 4th June, 2015. He was also compelled to make a statement and was detained for 8 days… The contention of the 1st Respondent is that they have the constitutional duty to arrest and investigate the Applicant based on a petition written by the 4th Respondent. It was however, not clear whether the Applicant was arrested on a warrant of arrest or any order duly issued by a court of competent jurisdiction. No warrant of arrest was exhibited and no order of court authorizing such arrest was attached to the counter affidavit. The position of law is that for a suspect to be arrested, apart from the fact that there was a basic preliminary investigation for arrest to be valid, there must be a valid warrant of arrest or an order duly issued by a court of competent jurisdiction. In the absence of which it can be concluded that the 1st Respondent (EFCC) acted without following due process of law.”
Justice Yunusa further held at page 21 of the judgment thus:
“It is clear to me that the issue of what led to the arrest and detention of the Applicant was a transaction involving a lawful property which is a civil matter that can be handled by a court of competent jurisdiction. What the 1st Respondent (EFCC) was expected to do was to advise the 4th Respondent (RCCG) to seek for redress in a court of competent jurisdiction”.
Should Justice Yunusa have allowed the EFCC usurp the duties of courts in matters relating to simple contract or allegation of trespass?
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