DASUKIgate: A’Court Affirms Detention Of Dasuki, Offers Cogent Reasons

Col Sambo Dasuki (rtd)

COURT of Appeal sitting in Abuja on Wednesday affirmed the continued detention of former National Security Adviser (NSA), Sambo Dasuki, stating that his re-arrest on fresh charge(s) after release from prison custody on December 29, 2015, was a normal procedure recognized in legal justice system all over the continent.

The verdict was delivered by a panel of five Justices led by Justice Abdul Aboki. The judgment was on one of the two appeals filed by Colonel Dasuki against the earlier rulings by Justices Husein Baba Yusuf (High Court of the Federal Capital territory (FCT), Abuja and Adeniyi Ademola (Federal High Court, Abuja).

The two courts had held that the plaintiffs re-arrest after he was released by the department of Security Service after release by the authority of the Kuje prison, upon meeting the conditions of bail granted him was not a violation of any existing orders so far the arrest was based on fresh charges.

Challenging the verdicts, Dasuki, through his lawyer, Joseph Duadu, approached the appellate court to set aside the decisions of both judges, insisting that his continued detention amounted to disobedience of the judicial orders releasing him on bail and as well as a breach of his fundamental right to freedom of movement.

After considering the submissions of the parties, the Court of Appeal, in unanimous decision, read by Justice Aboki, held that Dasuki’s appeal lacked merit and consequently dismissed it.

Emphatically, the court said the order to release the appellant from custody as directed by the court, was to the Controller of Prisons and not the anti-graft agency as it was not a party to it but the Controller of Prisons adding that since there was no order made against his re-arrest, there cannot be a disobedience of a subsisting order of the court whether by the EFCC or DSS.

It furthermore explained that the two government agencies are different with separate Acts and terms of reference allocated to them individually adding that the appellants prayers before him was similar to sheltering him from the traffic officials if he is found wanting on account of the order of the court which ordered his release from custody.  

“Once the appellant was released from prison on December 29, 2015 the order of court, admitting him to bail and releasing him from prison, where he was detained, has been complied with.

“The order was not complied with by the EFCC as it was not the subject and it was not directed at it.  For this reason, it is fallacious to argue that the EFCC did not comply or had disobeyed the court order for bail. The order was discharged by another agency of government – the Controller of Prisons.

“The power to punish for disobedience to court order is quasi-criminal, and by Section 36(9) of the 1999 Constitution, no person is guilty of any act or omission that was not an offence at the time it was committed. In the instant appeal, the trial judge in his ruling, giving right to this appeal, said he did not make any order against Dasuki’s re-arrest.

 “Apart from the existence of an order, it must be shown that the order was served on the alleged contemnor. Here, the trial judge found that there was no service of Form 48 on the DSS.

“The failure to serve the order is fatal to the proceedings as disobedience could not have been established. Since the DSS was not served with the order of the court and Form 48, they could not know the order of court the allegedly disobeyed.

“The order was clear, but it did not prevent re-arrest. The order was not served on DSS and, in effect, the EFCC. I need to point out also that the disobedience to court order, as contended, is an indication of crime, and so, the onus is always on the appellant, who alleges offence to prove that not only is there offence, but it was actually the EFCC or any other body that actually committed it.

“The EFCC did not re-arrest the appellant, as found by the trial judge. The DSS that allegedly re-arrested him has not been served with the court order not to re-arrest him. So, it could not have acted with any guilty mind.

“From the foregoing therefore, I firmly hold that there was no violation or disobedience of the order of the High Court made on the 18th of December 2015 whatsoever.

“If the appellant, having been granted bail, is driving along the road, and he committed a traffic offence, and the Police, which is also an agency of the Federal Government, can the Controller of Prisons, directed by the order of court to release him be arrested for disobedience of an order of court?

“In short, the lone issue for determination is resolved in favour of the 1st respondent and against the appellant and the other respondents, who did not file any brief and who sought to swim with the appellant.

“It is pertinent to observe that bail is of right to a person accused of a crime, once it is not a homicide charge, to enable him to prepare for his defence, which is his constitutional right. If a court grant bail, the order should be complied with as disobedience to court order is injurious to the smooth running of the administration of justice, and erodes the rule of law, which is necessary and part and parcel of any democratic society and to avoid anarchy. This appeal lacks merit. And it is hereby dismissed,” It said.