28th April, 2017
A Federal High Court in Lagos on Thursday fixed June 19 to deliver judgment in a suit filed by Chief Government Ekpemulopo, alias Tompolo, seeking the enforcement of his rights.
Tompolo, who had been declared wanted since February 12, 2016 by the Economic and Financial Crimes Commission (EFCC), is seeking court’s protection against prosecution over an alleged N45.9 billion fraud.
Joined as respondents in the suit are the Inspector-General of Police, the Chief of Army Staff, the EFCC, the Chief of Naval Staff and the Chief of Air Staff.
On Thursday, Justice Mojisola Olatoregun reserved judgment in the suit after hearing arguments from counsel.
Adopting his originating processes, counsel to the first and second respondents, Mr T.A Mofolu, argued that the provisions of the Administration of Criminal Justice Act, provides for speedy criminal trials.
According to him, the law provides that an accused has a right of appeal where he is not at par with the decision of a court.
He said in this case the respondent was aware of an appeal filed by the applicant.
He also objected to the attachment of a newspaper publication in the applicant’s further affidavit dated June 16, 2016 on the grounds that such piece of evidence was secondary and ought to be certified at the National library.
Mofolu, therefore, urged the court to dismiss the application for lack of merit.
But counsel to the EFCC, Mr Rotimi Oyedepo, submitted that the applicant in question was a “fugitive” in law and should not be allowed to seek redress from the court until he submitted himself for trial.
He argued that given the materials placed before the court, it was clear that the applicant was in clear contempt of the order of Justice Ibrahim Buba, who had earlier compelled his attendance in court to answer charges preferred against him.
Oyedepo described the application as an abuse of court process, saying “it is trite that a party who is in contempt of court cannot seek redress” and urged the court to throw out the application for lack of merit.
He said in his originating processes, the applicant had “ridiculously and in contradiction of his claims” annexed a copy of his notice of appeal signed personally by him.
“If the applicant feigns ignorance of the charge, how then was he able to brief his counsel on the charge for an appeal to be filed.
“The issue leading to the preferring of a criminal charge against the applicant borders on fraud in which billions of naira was lost by the Federal government.”
He, therefore, urged the court to dismiss the application and award “heavy” costs against the applicant for abusing the court’s process.
In response to the arguments of respondent’s counsels, Tompolo’s lawyer, Mr Ebun-Olu Adegboruwa, brought his application pursuant to the provisions of the African Charter of Human rights, the 1999 constitution, as well as the inherent jurisdiction of the court.
He argued that in criminal law service of a charge was personal and could not be presumed, adding that there is no evidence before the court showing that exhibit A (charge) was served on the applicant.
On the issue of contempt, Adegboruwa submitted that the applicant could not be cited for contempt, adding that since the beginning of the proceedings, the applicant cannot be said to have breached any court order.
He insisted that it was the constitutional right of the applicant to apply to court for the enforcement of his rights and urged the court to uphold it.
After listening to the submissions of counsel, Justice Olatoregun fixed June 19 for judgment.
The EFCC had filed a 40-count charge against Tompolo and nine others before Justice Ibrahim Buba of the same court.
Following the absence of Tompolo in court since his arraignment, Justice Buba had issued a bench warrant for his arrest and production in court.
The court had also on February 19, 2014, ordered a forfeiture of property belonging to Tompolo after an application was moved to that effect by the EFCC.
Justice Buba had held that the Administration of Criminal Justice Act 2015 empowers the court to seize properties of an accused who refused to face trial.
The court recalled that though Tompolo refused to appear in court, he briefed his lawyers and through them sought to vacate the order of his arrest.
Consequently, he ordered forfeiture of properties belonging to Tompolo pending when he appears in court.
Property affected by the forfeiture order included a River Crew Change Boat named MUHA – 15, the property known as “Tompolo Dockyard”, and the property known as “Tompolo Yard”, at the end of Chevron Clinic Road, next to Next Oil, Edjeba, Warri.
Others are the Diving School at Kurutie at Escravos River, the property known as “Tompolo House” at Oporaza Town, and any other property discovered by the EFCC moveable and immovable.
Meanwhile, Tompolo is seeking an order restraining the respondents from further proceeding with the charges slammed on him.
Tompolo contends that Sections 221 and 306 of the Administration of Criminal Justice Act, 2015 which prohibit him from seeking a stay of proceedings in his trial infringed on his constitutional rights to fair hearing.
Tompolo also wants the court not to only nullify Sections 221 and 306 of the ACJA but to also restrain the respondents from invoking the sections of the law against him.
He insists that Sections 221 and 306 were in conflict with Section 36 of the Constitution which guarantees his right to fair hearing.