TheCable

Femi Falana,a senior advocate of Nigeria (SAN), has told Abubakar Malami, attorney-general of the federation (AGF), to ensure the release of Ibrahim El-Zakzaky, leader of the Shi’ia sect, or face another legal action.

Falana, who said this in a letter to Malami, had earlier sued the government for the continued detention of El-Zakzaky, and he had judgment in his favour.

In December 2016, Gabriel Kolawole, justice of the federal high court, Abuja, had ordered the Department of State Services (DSS) to release El-Zakzaky and his wife within 45 days.

He also directed the agency to give the couple N50m as compensation for the destruction of their property in Kaduna.

However, since the expiration of the deadline on January 16, the DSS has not released them.

In a letter seen by TheCable, Falana told the AGF to ensure the release of the couple or face a legal action at the appeal court.‎

“We are solicitors to Sheik Ibraheem Elzakzaky and his wife, Hajia Ibraheema Elzakzaky on whose behalf we write this letter,” the letter read.

“In a considered judgment delivered on December 2, 2016 the federal high court (per Kolawole J) declared illegal and unconstitutional the detention of Sheik Ibraheem Elzakzaky and his wife, Hajia Ibraheema Elzakzaky and ordered their immediate release from the custody of the State Security Service within 45 days.

“Since the Nigerian army and the Kaduna atate government had engaged in the illegal destruction of the residence of our clients in December 2015, the court ordered the federal government to provide a temporary accommodation for them. The court also awarded reparation of N50 million to the couple.”

Falana said the federal government refused to comply with the court’s directive, but filed an appeal against the judgement.

“Although the deadline expired on January 16, 2017 the State Security Service has refused to release our clients from custody in utter contempt of the valid and subsisting order of the federal high court. The federal government has equally refused to comply with the other terms of the judgment,” he said.

“However, we are not unaware that your office has filed an appeal against the said judgment at the court of appeal.

“But since the filing of the appeal has not varied or suspended the orders of the learned trial judge you are duty bound to advise the federal government to comply with the clear and unambiguous terms of the judgment.

“Having regard to the facts and circumstances of this case we are compelled to remind you of the case of Nigerian army v Mowarin (1992) 4 N.W.L.R. (pt 235) 345 where the court of appeal dismissed the motion for stay of execution of the judgment of the Lagos high court for the release of the appellant. In justifying the ruling of the court of appeal, Kalgo JCA (as he then was) held that ‘the refusal  of the application will not cause any injury to the applicant, but if the application is granted, the respondent will continue to suffer personally in detention after the court has declared her detention unlawful ab initio.’ Based on the dismissal of the application for stay of execution the then military junta released the respondent from further custody.

“In line with the principle of law espoused by the court of appeal in the case of Nigerian army v Mowarin (supra) your office has not filed any application for stay of the execution of the judgment of the federal high court which has ordered the federal government to release our clients from the unlawful custody of the State Security Service.

“In view of the avowed commitment of the Buhari administration to operate under the rule of law we urge you to use your good offices to ensure that our clients are released from illegal incarceration without any further delay. However, if our request is not granted forthwith we shall not hesitate to pray the court of appeal to refuse to entertain the appeal filed by your office against the judgment of the federal high court until the federal government has purged of the contempt of the federal high court‎.”