This Day (Lagos)

Nigeria: Ubah - Maduka, Others Head for Appeal Court

The respondents in the fundamental human rights suit filed by the Managing Director of Capital Oil and Gas Limited, Mr. Ifeanyi Ubah, have vowed to challenge the judgment of Justice Chukwujekwu Aneke of the Federal High Court in Lagos at the Court of Appeal.

Justice Aneke on Monday had quashed the report of the Presidential Committee on the Verification of Oil Subsidy Payment to oil marketers as it affects Ubah.

Listed as respondents in the suit were the Commissioner of Police, Special Fraud Unit (SFU), Mr. Ayotunde Ogunsakin; Managing Director, Access Bank Plc, Mr. Aigboje Aig-Imoukhuede; and the Managing Director, Coscharis Motors, Mr. Cosmas Maduka.

But an official close to Access Bank, who could not be named because he was not authorised to speak on the matter, confided in THISDAY Tuesday that the respondents would contest the judgment at the Court of Appeal.

According to him, the judgment will not be allowed to stand because it is inherently flawed and biased.

In addition, he said they would apply for a stay of execution of the court's judgment pending the hearing and determination of the appeal.

Access Bank, which financed the transaction for the importation of petrol that led to the legal tussle, in a statement Tuesday, however, said the judgment would not impair its ability to recover the loan from Ubah and his company.

In his judgment, the judge said the report of the committee, set up by President Goodluck Jonathan and headed by Aig-Imoukhuede, was tainted with malice.

He also awarded Ubah N10 million as damages for being detained by the police based on the report.

The judge also granted an order of perpetual injunction, restraining the police, either acting by themselves or their privies, from harassing, detaining or otherwise infringing on the fundamental rights of the applicant.

However, reacting to the reliefs granted Ubah, the official wondered why the judge would refer to the presidential committee's report, which neither Ubah nor any of the parties tendered before him during the hearing of the case.

He wondered why Justice Aneke would make such a definitive determination over a document that he did not see and that was not placed before him.

Also, he wondered why the court would pronounce a Federal Government's document unusable by any "agency whatsoever" when the Attorney General of the Federation (AGF) was not a party in the suit.

He said: "One of the amazing features of this judgment is that the presidential committee's report, according to insiders, was not tendered or placed before the court at all by the applicants or any of the parties.

"The question is, can or should a judge make such a definitive determination in respect of a document that he has not seen and that was not placed before him; more-so, a document as critical and important as the Presidential Committee Report on Fuel Subsidy Payments?

"Even more surprising is that the Attorney General of the Federation was not a party to this suit and was not heard on this defining Federal Government's document before the court pronounced it unusable by any 'agency whatsoever'.

"So, who was heard in defence of this untendered document before the court judgment? Nobody! The Attorney General of the Federation who is the chief law officer of the federation with responsibility for defending Federal Government's actions was not joined as a party in this suit.

"The presidential committee, it must be remembered, was constituted by the President and Commander-in-Chief of Nigeria's Armed Forces, Dr. Goodluck Jonathan, as an organ or agent of the presidency albeit domiciled in the Federal Ministry of Finance.

"And yet, without hearing from the Federal Government's party, the presidential report was vitiated by the court even when the report was not before the court."

The official faulted the judgment on the grounds that it would cripple the powers of the police to effectively tackle crime.

He warned that unless the Court of Appeal quickly intervened by overturning the judgment, the full implication and impact of the judgment on police investigations and crime control in the country would unravel in the days ahead.

He wondered why the judge would proceed to nullify and set aside the police interim investigation report without waiting for the applicants to be arraigned.

Continuing, he said: "We also believe that legal scholars and indeed all Nigerians who are interested in crime control would seriously ponder over the aspects of the judgment that nullified and set aside the police interim investigation report without waiting for the arraignment of the applicants.

"Even more befuddling is that the judgment was reached based solely on affidavit evidence and without the rigour of any proper trial with the attendant trappings of witness examination and cross-examination!

"By this judgment, all that any police investigated person and suspected felon with muscle needs to do in order to truncate possible arraignment and prosecution is to challenge the police preliminary investigation on his matter and without the benefit of a proper trial.

This matter, it must be emphasised, was determined on the basis of affidavit evidence only - the innocence of the investigated person will be pronounced by the court and it would be held that the police interim investigation report cannot be used for the purpose of any proceedings against the investigated persons!

"We are certain that the full implications and impact of this judgment on police investigations and crime control in Nigeria would unravel in the days and years to come - except of course the Court of Appeal where some of the respondents are now headed, seeking to overturn the judgment."

In its reaction to the judgment, Access Bank expressed confidence that the debt recovery action it had initiated against Capital Oil and Uba would be successful.

The bank's Company Secretary/Head, Regulatory Compliance, Mr. Sunday Ekwochi, in a statement Tuesday, said the bank was not a party to the suit, adding that the legal action was still on.

Ekwochi explained: "Our attention has been drawn to media reports and text messages purporting that a Federal High Court sitting in Lagos presided over by Honourable Justice Chukwujekwu Aneke on Monday February 18, 2013 gave judgment against Access Bank Plc and three others in Suit No FHC/L/CS/07/13 involving Capital Oil and Gas Ltd and Patrick Ifeanyi Ubah.

"Access Bank Plc is not a party to the above captioned suit instituted by Patrick Ifeanyi Ubah and his company Capital Oil and Gas Limited. The subject of the suit and reliefs sought therein are unconnected with the actions instituted by the bank for the recovery of the monies due to it from Patrick Ifeanyi Ubah and Capital Oil and Gas Limited. The plaintiffs in the above suit did not seek any declaration, injunctive relief or damages against the bank."

He assured the bank's customers and shareholders that the court in its Monday judgment did not make any declaration nor grant any perpetual or interlocutory injunction against the bank in favour of Ubah or any other party in the proceedings.

"For the avoidance of doubt, the bank confirms that the recovery actions it embarked upon against Ifeanyi Ubah and Capital Oil and Gas have not been in any form or substance affected nor prejudiced by the proceedings or judgments of the court in the above mentioned suit," he added.

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