From Jamiu Folarin, Abeokuta
The Ijoko based Islamic Cleric, Ustaz Abdul-Ganiy Jimoh Ibrahim and his wife Muhinat, arrested and detained over eight months ago, have filed a suit against the Department of State Security (DSS) for kidnapingand unlawful detention.
They are claiming a N300 million damages against the defendants.
Other respondents are the Ogun state Director, State Security Service and the Attorney General of the Federation, as the second and third respondents.
When the case was brought before on Monday, the Prisoners Rights Advocacy Initiative (PRAI), who instituted the legal action against the three respondents at the Federal High Court sitting in Abeokuta, the Ogun State capital, asked the court to declare the arrest and continued detention of the Applicants without proper arraignment and trial as unlawful and unconstitutional.
In the motion filed by Counsel to the Applicants, Ahmed Adetola-Kazeem and Abubakr Yekini of Prisoners Rights Advocacy Initiative also asked the court to issue an order, directing the unconditional release of Ustaz Abdul-Ganiy.
The Applicants also pray the court to give an order directing the Respondents to render public apology in two widely read newspapers to the Applicants for their unlawful arrest and detention.
When the case was brought before Justice FOG today, it was adjourned to the 31st of March, 2015 for hearing directing that the 3rd Respondents, the Attorney-General of the Federation be served the notice of hearing.
In an affidavit in support of the motion, the neighbour of the Applicants, Lukman Oketokun narrated how the applicants were kidnapped and whisked away by unknown gunmen before locating them at the Ogun state headquarters of the State Security Service in Abeokuta.
‘Lukman Oketokun of 27 Fagbemi Street, Ijoko, Lagos, a neighbour of the Applicants and an eye witness to the arrest on 5th of July 2014’
The Department of State Security (DSS) has finally arraigned Ogun state based Islamic cleric, Ustaz Abdul-Ganiy Jimoh Ibrahim eight month after being whisked away with his wife, Moheenat at their Ijoko residence.
It would be recalled that unknown gunmen in a commando style kidnapped Ustaz Abdul-Ganiy and his pregnant wife in the early hours of July 5, 2014 from their Ijoko, Ogun state home.
But in September 10, a relative of the couple, Lukman Oketokun was summoned to the DSS office in Abeokuta, where he discovered the kidnapped couple.
Through the help of a lawyer, the heavily pregnant Muhinat was released but her husband was not. He remained in confinement.
However, in the counter counter-affidavit deposed by the DSS, Ogun State Command, it was explained that Ustaz Abdul-Ganiyu was arrested on the allegations of terrorism financing, training of terrorists, associating with terrorists and failing to disclose the whereabouts of terrorists.
Replying on points of law, counsel to the Applicants maintained that the DSS breached the fundamental rights of the applicants in the course of investigation.
He described allegation of terrorism against them as speculative and fishing.
THE LEGAL ARGUMENTS
COUNSEL TO THE APPLICANTS
Prisoners Rights Advocacy Initiative (PRAI) who instituted the legal action against the three respondents at the Federal High Court sitting in Abeokuta, the Ogun state capital, on behalf of the Applicants asked the court to declare the arrest and continued detention of the Applicants without proper arraignment and trial as unlawful and unconstitutional.
Motion on notice brought pursuant to order 2 Rules 1 $ 2 of Fundamental Rights (Enforcement Procedure) Rules 2009, Sections 34, 35, 36 (6), 38 and 41 of the 1999 constitution and articles 5,6,7 and 8 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) act and under the inherent jurisdiction of this honourable court.
A Delaration that the arrest and continued detention of the 1st Applicant for a period of 4 months now without proper arraignment and trial in a court of competent jurisdiction is unlawful and unconstitutional as it violates the applicant’s fundamental human rights to dignity f his person, personal liberty and freedom of movement as guaranteed by sections 34, 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria and Articles 5,6 and 7 of the African Charter on Human and Peoples’ Right.
A Declaration that the Arrest and Detention of the 2nd Applicant for a period of 64 days by 1st Respondent when she was heavily pregnant without proper arraignment and trial in a court of competent jurisdiction is unlawful and unconstitutional as it violates the 2nd Applicant’s fundamental human rights and dignity of her person, personal liberty and freedom of movement as guaranteed by sections 34, 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria and Articles 5,6 and 7 of the African Charter on Human and Peoples’ Right.
A Declaration that the continued detention of the 1st Applicant without informing him the details of the nature of his offence and not allowing him access to his lawyers and family members is a flagrant violation of 36 b(6) of the 1999 Constitution of the Federal Republic of Nigeria and Article 7 of the African Charter on Human and Peoples’ Right.
A Declaration that the refusal of the 1st Defendant to allow the Applicants access to the Qur’an while in their custody is violation of 38 of the 1999 Constitution of the Federal Republic of Nigeria and Articles 8 of the African Charter on Human and Peoples’ Right.
An order directing the unconditional release of the 1st Applicant forthwith.
N300 Million damages against the Respondents jointly and severally for the unlawful detention and violation of the right to dignity of the 1st and 2nd Applicants.
An order directing the Respondents to render public apology in 2 widely read newspapers to the Applicants for the unlawful arrest and detention of the Applicants.
And Further or other Orders as this Honourable Court may deem fit to make in the circumstance.
AFFIDAVIT IN SUPPORT/VERIFYING AFFIDAVIT OF THE APPLICANTS
In an affidavit in support of the motion, the neighbour of the Applicants, Lukman Oketokun narrated how the applicants were abducted by unknown gunmen before locating them at the Ogun state headquarters of the Department of State Services in Abeokuta.
‘I heard a loud knock on our front door, we asked who it was and they said they were policemen, so we opened the door for them. On opening the door, we saw men in black T-shirts with guns, some of them were masked.
They ordered everyone to lie down and about three minutes later they told me to get up and lead them to room where they conducted a search. While the search was going on, they threatened to shoot me if I move against their orders.
Afterwards, I was taken to the 1st Applicant’s room where they informed me that they are taking him away and that I should take care of the Applicants’ five children. The 2nd Applicant protested and they took her along, while she was heavily pregnant and asthmatic.’
‘Their operation was for about 10 minutes. These men whisked away the Applicants without informing us of their crime, but only instructed me to take care of the Applicants five children while they are away.
‘Despite the publicity, efforts to locate the Applicants failed.
‘On the 9th of September 2014, exactly 64 days after the incident, Mr Victor called me and asked me to go to their office at Oke-Mosan, Abeokuta, Ogun state to meet the Deputy Director of Operations the following day.
‘On the 10th of September, 2014, we met with the man and he brought out the Applicants and released the 2nd Applicant to us on bail. When we asked what their offence was, he said ‘Abuja’ only asked them to keep the Applicants.’
COUNTER AFFIDAVITS OF DSS
Meanwhile, the Department of State Security (DSS) has given reasons for the arrest and continuous detention of Ustaz Abdul-Ganyu Jimoh Ibrahim whisked away from his Ijoko residence on July 5th, 2014.
In the counter counter-affidavit deposed by the DSS, Ogun State Command, it was stated that Ustaz Abdul-Ganiyu was arrested for on the allegations of of terrorism financing, training of terrorists, associating with terrorists and failing to disclose the whereabouts of terrorists leveled against them.
“That the 1st and 2nd Respondents’ Head office at Abuja received intelligence on 2nd Day of July, 2014, which indicated that the Applicants were communicating with a known member of the terrorist group (Boko Haram) whose heinous activities have resulted in the death of uncountable number of innocent Nigerians.
“That the Applicants had been propagating terrorist ideology as well as training insurgent groups in a school under the guise of running an Islamiyya school.
“That the conduct of the Applicants was calculated to undermine peace and security in the country.
“That it was established by the 1st and 2nd Respondents in the course of investigation that the 1st Applicant is not only a member of the the deadly sect, but was once a student of the founder of Boko Haram, Mohammed Yusuf.
“That the exploitation of the phones of the 2nd Applicant revealed that the 1st Applicant had been communicating with one Abu Umar, a key member of Boko Haram, who had been declared wanted.
“That in order to conceal the identity of the said Abu Umar, the 1st Applicant saved his (Umar’s) number (07065240178) as ABC in the 2nd Applicant’s phone instead of his own.
“That the 1st Applicant claimed to have made the acquaintance of Abu Umar while he was a student at the University of Maiduguri in 2003
“That the 1st Applicant claimed that Abu Umar and Mohammed Yusuf influenced him into believing that Western Education was evil (Haram).
“That based on the teaching by Abu Umar and Mohammed Yusuf he decided to withdraw from the University in 2003 when he was a 300 Level student of Veterinary Medicine.
“That on 4tH July, 2014, he communicated with Abu Umar who is at large on so many issues of security interest, including that of the establishment of a school (MADRASAT) in Kaduna.
“That the said school (MADRASAT) is mearnt to further the cause of Boko Haram, to wit, the training of members of the insurgent group, the 1st Applicant being a member of AHLUS-SUNNAH, to which his mentor, Mohammed Yusuf, was the leader.
“That having established the link of the Applicants with terrorists who are at large, and the fact that their release will jeopardize further investigation, court orders were obtained to keep them in the custody of the 1st and 2nd Respondents.
“That releasing the 1st Applicant while the investigation is ongoing is detrimental to the fight against terrorists/terrorism, moreoso, that the deadly Boko Haram group is still wreaking havoc on innocent citizens and increasing the general insecurity in some parts of the country,” the affidavit stated.
In response to the originating summon/counter affidavit and written address, the 1st respondents (Department of State Service, Ogun State Command) submitted that ‘it would be in the interest of justice to dismiss this application in order to allow Government focus on the fight against the terrorists/insurgent group (Boko Haram), in whose interests the Applicants were found to be working with.
REPLY ON POINT OF LAW BY COUNSEL TO THE APPLICANTS
On his reply on points of law, Counsel to the Applicants maintained that the DSS breached the Fundamental Rights of the Applicants in the course of Investigation describing allegation of terrorism against them as speculative and fishing.
“The Respondents have not been able to even raise a valid suspicion of the commission of any offence to have warranted the incarceration of the Applicants.
“They alleged that the Applicants have been making consistent secrets calls to one Abu Umar whose identity has never been proved by the Respondents.
“My Lord, the following facts need to be established by way of concrete evidence by the respondents- Was there any evidence before the court of anyone bearing Abu Umar?; Was there any exhibit showing that any Abu Umar is a member of Boko Haram and has been declared wanted?; Was there any call log attached by the Respondents to put the conversation of the 1st Applicants and the said Abu Umar before the court to assess?; Was there any curriculum (or class recordings) exhibited to show that the 2nd Applicant’s Islamic school is impacting terrorism on students?; The burden of proving all these allegations lies with the respondents and until they are proved, it can never shift to the Applicants.
“The 1st Applicant never mentioned Muhammed Yusuf. It was the assumption of the respondents. As a matter of logic and law, the Yusuf described in the 1st Applicant statement could not have been the Muhammed Yusuf of Boko Haram.
“The 1st Applicants by EXH AG 11 never stated that he has ever been a member of Boko Haram or have any acquaintance with them.
“Rather, he relocated from Borno State as far back as 2003.
“The exhibits attached to the Further affividavits deposed to by the 2nd Applicants showed that the 1st Applicant made efforts in recent times to gain admission to tertiary institution which is obviously antithetical to Boko Hram or associate of one A bu Umar (on the basis a solitary call, which is a mere exchange of pleasnaty, in a period of over 12 years) is absolutely baseless.”
Justice F.O.G Ogunbanjo adjourned the case to March 31 for hearing.
The judge directed that the 3rd Respondents, the Attorney-General of the Federation be served the notice of hearing.