Justice Olatoregun Ishola of a Federal High Court in Lagos has fixed December 12, 2016, to rule on the application filed by Chief Government Ekpemupolo, alias Tompolo, to refer his case against the Federal Government of Nigeria, to the Court of Appeal, for its opinion on certain questions of law.
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At the resumed hearing of the case on Tuesday, counsel to the federal government, Tolu Mukoro argued that the application of Tompolo should not be granted as section 45 of the 1999 Constitution permits the government to enact any law, such as the Administration of Criminal Justice Act.
He stated that it is reasonably justifiable in a democratic society and Tompolo cannot seek to strike down the ACJA.
He submitted further that since Tompolo has been consistently absent in the main criminal proceedings leading to this civil suit, he should not be allowed to take benefit of his wrong doing to obtain any favour from the court.
Also, lawyer to the Economic and Financial Crimes Commission (EFCC), I.B. Mohammed stated that the EFCC would rely on paragraph 23 of its substantive counter-affidavit, which has aptly captured their arguments against the application for referral.
He submitted further that since the suit was commenced under the Fundamental Rights Enforcement Procedure Rules, it cannot be referred to the Court of Appeal, as there is no provision in the said fundamental rights rules to justify such transfer.
Replying, Tompolo’s lawyer, Ebun Adegboruwa, countered that section 45 of the 1999 Constitution is inapplicable, since it specifically excludes section 36 of the 1999 Constitution, under which Tompolo filed the case.
He argued that Tompolo is not seeking to strike down the entire ACJA but rather two of its provisions in sections 221 and 306, which he argued are unconstitutional.
On EFCC submission, Adegboruwa stated that the application for reference was brought under section 295(2) of the 1999 Constitution which having not specified the type of proceedings that can be referred, should be of general application to all cases before the court.
Adegboruwa stated that the EFCC could not rely on its main counter-affidavit at the interlocutory stage since the substantive case is not being argued yet.
After taking argument from all counsel, the court adjourned the case to December 12, 2016, for ruling.
It will be recalled that on Friday, April 8, 2016, Tompolo filed a fresh action before the Federal High Court, in Lagos, asking for an interpretation and nullification of certain sections of the Administration of Criminal Justice Act, 2015, which he stated affected his constitutional rights.
A sister court presided over by Justice Ibrahim Buba, had issued a warrant for the arrest of Tompolo.
Tompolo is contending that sections 221 and 306 of the Administration of Criminal Justice Act are invalid and unconstitutional, in so far as they seek to prevent the court from exercising its jurisdiction to entertain any objection to a criminal charge and an application for a stay of proceedings pending appeal.
He is thus asking the Court to stop his further trial until the determination of these issues.
The federal government of Nigeria has asked the Federal High Court, Lagos, to dismiss the case filed by Chief Government Ekpemupolo (alias Tompolo) for being an abuse of process and an attempt to shield Tompolo from his trial.
The EFCC on its part had asked the court to dismiss Tompolo’s case since he has exercised his constitutional right of appeal against the order of court for his arrest.
Subsequently on May 20, 2016, Tompolo through Adegboruwa, filed another application before the Court, relying on section 295(2) of the 1999 Constitution, for reference of the points of law raised in the main application to the court of appeal.