Malabu arrest warrants: A case of prosecutorial overreach? By Abubakar Sani

The news, last week, that the Economic & Financial Crimes Commission (EFCC) had procured a warrant of arrest against the immediate past Attorney-General of the Federation & Minister of Justice, Mr Mohammed Bello Adoke, as well as a one-time Minister of Petroleum Resources, Mr Dan Etete and four others, might yet prove to be another manifestation of the tendency of our public institutions to confuse motion with movement. My reasons will be outlined anon.


Before then, it will be recalled that the proceedings in connection with which the warrant was issued, Charge No. FCT/CR/124/2017, pending before Hon. Justice Danladi Senchi, are just one, out of three similar suits filed by the Government against the former Minister et al in relation to the alleged fraudulent disposal of OPL 245, popularly called Malabu Oil. The others are Charge Nos. FHC/ABJ/CR/208/2016 and FHC/ABJ/CR/39/2017 before the Federal High Court, Abuja.


Bases of the Warrants


In the affidavit in support of EFCC’s application upon which the court based its order, the anti-graft agency had deposed that:-


i. “That the arraignment of the defendants could not take place because the 4th to 9th defendants are at large and have refused to make themselves available;

ii. “That all efforts to apprehend the fleeing defendants proved abortive;

iii. “That in furtherance of efforts to apprehend the 4thto 9th defendants, the EFCC contacted the Nigeria Police to assist in watch-listing (sic) them and facilitating their arrest”;

iv. “That the Nigeria Police in response requested detailed particulars and necessary processes to enable them to liaise with INTERPOL, and other relevant sister organizations have insisted that in addition to having a pending charge before a competent court, there must be a warrant of arrest to enable the organizations to apprehend the defendants.

v. “That granting this application will facilitate the required liaison with INTERPOL and ensure that the defendants/respondents are apprehended and produced before the court for their arraignment to the charges filed against them.”
From the foregoing, it is transparently clear that the inability of the Prosecution to serve the charges on Mr. Adoke and the other defendants prompted it to apply for the warrant. What does the law say about this situation? Does the mere failure or inability of the Prosecution to arraign a suspect or even to formally inform him/her of the pendency of a criminal charge entitle it to apply for a warrant of arrest against that suspect?


To the best of my knowledge, the relevant applicable law is Section 394 of the Administration of Criminal Justice Act 2015. It provides thus: “Where a defendant against whom an information has been duly preferred, and on whom the information and notice of trial have been duly served, does not appear to plead to the information, whether he is under recognizance to appear or not, the court may issue a warrant for his arrest”.


The first point to note about this provision is that it clearly encroaches on the citizen’s right to liberty. In this regard, in AFOLABI vs. GOV. OF OYO STATE(1985)2 NWLR pt. 9 pg. 734 @ 753H, the apex court held that: “the courts have adopted the principle that statutes which encroach on the rights of subjects, whether as regards the person or property, are subject to strict construction in the same way as Penal Acts. Therefore, such statutes should be interpreted so as to respect such rights and if there is any ambiguity, the construction which is in favour of the freedom of the individual should be adopted”. See also OKOTIE-EBOH vs. MANAGER (2004) 18 NWLR pt. 905 PG. 242.


In the case of Messrs. Adoke, Etete et al, the Prosecution itself openly admitted that the charges were yet to be served on the defendants. I submit that even the most liberal interpretation of the provisions of Section 394 of ACJA will lead to the irresistible conclusion that not only was EFCC’s application premature, it was predicated on an unfulfilled condition precedent to the procurement of the warrant, namely, service of the charges and notice of the trial on Messrs Adoke, Etete et al as aforesaid. It is elementary that this is a fatal flaw which robs the court of jurisdiction to issue the warrants and, as a consequence, invalidates it. See MADUKOLU vs. NKEMDILIM (1962) All NLR 242.


This is all the more so, in my humble view, because section 394 of ACJA imports a permissive, and not,an imperative mandate. This is because of the context in which the word “may” is used therein in relation to the power of a court to order the arrest of a defendant. In other words, the court is conferred with a discretion. In this regard, it was held in ONI vs. FAYEMI (2008) 8 NWLR pt. 1081 pg. 400@ 440H. C.A., that “discretion, being judicial, must at all times, be exercised, not only judicially, but also judiciously, based on sufficient materials placed before the court”.


The burning question, therefore, is: can the order of arrest in this case be said to have been made judicially and judiciously? To find the answer, one has to look at the affidavit which the Prosecution used to procure the order. Parts of it were narrated, infra. I humbly submit that the affidavit fell far short of the standard required by law. This is because it is bereft of sufficient materials to warrant the exercise of the court’s discretion within the intendment of Section 394 of ACJA. In NTUKIDEM v. OKO (1986) 17 NSCC pt. II, pg. 1306 @ 1326, the apex court held that “discretion that produces an obvious injustice is one not judicially or even judiciously exercised”.


Yet another reason why the order is flawed, in my humble view, is the failure of the Prosecutor to disclose any particulars of the source of the information or the basis of sits belief that the order was a prerequisite for triggering the intervention of the Nigerian Police and INTERPOL to assist it in effecting the arrests. This is a requirement of Section 115(4) of the Evidence Act.


Besides, it is arguable that the said decision of Hon. Justice Binta Nyako in April 2018 creates an estoppelper rem judicatam on the crucial question of whether Mr. Adoke, in particular, can be criminally liable for his conduct in relation to which the charges before Justice Senchi and the two others before the same Federal High Court, as aforesaid, were filed. This is because Justice Nyako made several far reaching findings of fact in that case which all but exonerated Mr. Adoke of complicity in the allegations which formed the basis of the indictments before all three courts. Can the EFCC honestly feign ignorance of that judgment? Yes, the Agency was not a party thereto, but this is irrelevant, because, being a judgment-in-rem, it binds the whole world, and more importantly, it subsists until it is set aside on appeal. No such appeal was filed, and none is pending against it.


I humbly posit that Justice Nyako’s judgment satisfies the requirements of res judicata vis-a-vis Mr Adoke’s role in the Malabu saga within the principles in UDEZE vs. CHIDEBE (1990)1 NWLR pt. 125 pg. 141 @ 155, S.C., and other cases. As previously stated, EFCC’s absence from Justice Nyako’s proceedings is of no moment, as estoppel per rem judicatam applies not only to parties, but to their privies. EFCC is certainly the privy-in-law of the Attorney-General of the Federation – vide Section 43 of the EFCC Act, 2003 - within the formulation of the apex court in COKER vs. OLUSOGA (1994) 2 NWLR pt. 329 pg. 648 @ 659.


Any suggestion that estoppel applies only to civil causes and not to criminal proceedings is untenable, as it would violate the right to equal protection of the law under Article III(2) of the African  Charter on Human & Peoples Rights. See NNPC vs. FAWEHINMI (1998)7 NWLR pt. 559 pg. 598 @ 616, C.A.


Conclusion


In a situation where a court of competent jurisdiction has clearly exonerated a person on the ground that he was merely carrying out the lawful directives of his principal (respondent superieur), it is a travesty to insist on prosecuting the former while the latter goes scot-free. If the EFCC insists on pursuing the Malabu case to its logical conclusion, it should quit chasing minions – who are merely agents of a disclosed principal - and go after the “big fish” who called the shots. No prizes for guessing who that is.


As for Mr. Adoke, he has the judgment of a competent court to prove his innocence. Whoever insists that he is still guilty notwithstanding that judgment, should first appeal against it. This includes the EFCC - with leave, as an interested party. However, this option is all but foreclosed, given the lapse of time for doing so under the Constitution – 90 days after the judgment was delivered. Procuring a warrant for Mr. Adoke’s arrest, while that judgment subsists, smacks of prosecutorial impertinence, if not an outright abuse of court process.


Abubakar D. Sani Esq.
Kano