Counsels and litigants in court proceedings holds the court the duty to disclose material facts to court in order for the hon. Court to dispense justice accordingly.
Recently, a federal high Court sitting in Lagos gave an order for the DSS to release the detained CEO/MD of Capital Oil and Gas Ltd, Dr. Ifeanyi Ubah henceforth within 48 hours of the order.
While the Hon. Court in Lagos was delivering the order berated the DSS for not disclosing the truth and misleading the court by stating that Dr. Ubah was arrested in Abuja instead in Lagos.
The basis of the above statement was to clarify the important of jurisdiction in a matter before a court could exercise right of entertaining/hearing the matter, because without jurisdiction a court has not competency to hear and entertain a matter before the court.
The conflict: a High Court of the FCT, Abuja before the Hon. Justice Yusuf Halilu on Thursday 25 May 2017 enetertained the DSS ex-parte (urgency) application filed by its counsel Mr. G.O.A. Agbadua and granted the ex-parte application to hold Dr. Ifeanyi Ubah, CEO of Capital Oil and Gas Ltd, for another 14 days.
DSS lawyer, Mr. G.O.A. Agbadua informed the court that the earlier detention application ordered granted by the court on 10 May 2017 expired on Wednesday 24 May 2017 and the DSS deemed it necessary to renew the order of detention to hold Dr. UIfeanyi Ubah in their custody by fling another application for detention.
While lawyer to Dr. Ubah, Ifeoma Esom (Mrs) has filed a fresh application asking the court to compel the DSS to release her client on administrative bail.
It will be recalled that the security agency had in a counter-affidavit it filed before the court, alleged that Ubah committed an economic sabotage punishable by death.
It told the court that the detained oil mogul illegally diverted about 84 million litres of Premium Motor Spirit (commonly called petrol), that was kept in his custody by the Nigerian National Petroleum Corporation, NNPC.
The DSS, while opposing an application that sought to vacate the remand order it secure against Ubah, stated in the counter-affidavit deposed by one of its operatives, Mr. Safwan Bello, that the PMS Ubah diverted was valued at N11billion.
It averred that several effort by the NNPC to recover the PMS it kept in Ubah’s tank farm failed as the applicant had converted it to his personal use.
The agency maintained that Ubah’s action was capable of causing artificial scarcity of the product thus plunging the country not only into widespread scarcity of PMS but also in economic chaos.
According to the DSS, “The respondent (Ubah) was arrested on reasonable suspicion of his involvement in the commission of crime.
“The respondent refused to return the PMS to NNPC after repeated demands. The PMS is worth over N11bn. The action of the respondent is affecting the distribution of petroleum products to the populace.
“The action of the respondent is sabotage of NNPC’s activities as it relates to distribution of petroleum products. If not for the urgent steps taken by the Federal Government, the action of the respondent would have plunged the country into widespread scarcity with its attendant effect on the economy”.
Lawyer to Dr. Ifeanyi Ubah, Ifeoma Esom (Mrs.) further adumbrates on the nature of the matter that the issue on ground was purely civil and contractual matter between two aggrieved contractual parties and not criminal matter.
However, Ubah’s lawyer, Esom, has accused the DSS of surreptitiously securing an order to detain her client.
Ifeoma Esom (Mrs.) alleged that the DSS suppressed material facts when on May 10 2017, it persuaded the court to allow it to hold Dr. Ubah in its custody for 14 days.
In an application anchored on section 298(2) of the Administration of Criminal Justice Act 2015, Ubah, told the court that “Capital Oil and Gas Ltd (COG) of which the respondent is the CEO has always been one of NNPC’s largest Throughput providers and this is evidenced by Throughput agreements entered into between NNPC subsidiaries and COG over the years.
“These Throughput agreements, in accordance with the norms and practice in the industry worldwide, allow conversion and diversion of IT products by the ‘Operator’ so long as the Operator is prepared to re-deliver the products (in terms of the current contract) within 7 days of demand by the products owner or to pay a penalty for non re-delivery.
“The penalty to re-deliver is expressly stated by the Contract to be a mere breach of contract remediable by the payment of penalty to the owner. The penalty is comprised of the cost of delivery of the products to the Operator’s tank farm with interest at Nibor+1.
The governing laws and procedures as clearly provide remedy for a breach contract and how to remedy same under the circumstances of the case.
“The failure to re-deliver is expressly stated by the contract to be a mere breach of contract, remediable by the payment of penalty to the owner. There can therefore be no issue of crime in conversion of products under a throughput contract (regardless of the ordinary connotations of those words).”
“There can therefore be no issue of crime in conversion or diversion of products under a throughput contract (regardless of the ordinary connotations of those words).”
Ifeoma Esom (Mrs.) further disclosed that the DSS earlier arrested Dr. Ubah at his residential house in Lagos on March 24 2017 and kept him in its custody until April 14 2017 when he was temporarily and conditionally released after he had been coerced and induced into making payment of N2billion and executing various documents in favour of NNPC and Asset Management Company of Nigeria (AMCON).
Ifeoma Esom (Mrs.) further disclosed to the hon. court that when Dr. Ifeanyi Ubah returns to his residential home in Lagos, in fear for his life and freedom of liberty should he renew his claims that he is not indebted to either NNPC Retail Ltd or AMCON as he had maintained before his incarceration, instructed his counsel to file an application for the enforcement of his fundamental rights.
“Notwithstanding the pendency of the suit and the service of the originating processes, the DSS again invited the Dr. Ifeanyi Ubah to report to its offices in respect of the same allegations made by the NNPC and AMCON which is the subject matter of the suit.
“On the 5th of May 2017, the DSS arrested the respondent in Lagos and moved him to their Abuja office”.
The matter of jurisdiction must be resolved first before one can say a court has competency to entertain, hear, and give ruling and order over a matter.