By O. F. Akeredolu, PhD
Dear sir, I am writing this because I believe you are ‘open, always to being corrected by reasoned submissions grounded in law’.
I have read with care the article titled “EFCC Lead Counsel’s Press Release, Ex Parte Bail Order for Ex-AGF Malami, and the Perils of Terminological Mischaracterisation.” While the piece raises issues worthy of legal reflection, it unfortunately proceeds on a distortion of both facts and context, and in doing so misdirects the legal inquiry.
This rejoinder seeks to restore focus to the real issues, clarify the applicable legal framework, and place the comments attributed to the EFCC Lead Counsel in their proper procedural and jurisprudential setting.
1. The Central Issue Is Service, Not Abstract Possibility
The foundational question is not whether, in the abstract, a court can grant bail ex parte under Nigerian law. The real and decisive question is:
Was the EFCC served with any court order granting bail to Mr. Abubakar Malami, SAN?
If no such order was served, then the EFCC remained legally bound by the subsisting remand order of the same court, which was made on a motion on notice. In that circumstance, continued detention pursuant to that remand order cannot, in law or logic, be characterised as defiance of the court or a violation of rights.
Once this procedural reality is appreciated, much of the outrage and commentary dissolves.
2. The EFCC Lead Counsel Was Quoted Without Context
The statement attributed to the EFCC Lead Counsel—that it would be “most bizarre” for a judicial officer to grant bail ex parte to a criminal defendant without putting the detaining authority on notice—must be understood contextually, not rhetorically.
The statement was made against the background of non-service of any such order and the existence of a valid remand order. Viewed in that light, the comment was neither reckless nor contemptuous of judicial authority. Rather, it was an expression of a legitimate procedural concern rooted in settled practice:
that a detaining authority cannot be faulted for acting on an existing court order in the absence of a contrary one brought to its notice.
3. On the Invocation of the Fundamental Rights (Enforcement Procedure) Rules
The reliance placed on the Fundamental Rights (Enforcement Procedure) Rules (FREP) in the article is, with respect, misplaced.
FREP is a special, specific, and sui generis procedural framework, activated only where a fundamental rights action is properly before the court. It is not a universal template to be invoked in every detention scenario, nor does it automatically override subsisting criminal process orders.
This matter, as publicly presented, was not framed as a fundamental rights enforcement action. It arose within the context of criminal investigation and remand proceedings. To import FREP wholesale into that context, without more, is to confuse exceptional procedure with general criminal process.
Law must be applied with precision. A tool designed for one purpose cannot be indiscriminately deployed for another.
4. Exceptional Hardship Does Not Automatically Translate to Ex Parte Bail
Even where “exceptional hardship” is alleged—medical needs being the usual example—it does not follow, as a matter of course, that ex parte bail is the inevitable or appropriate remedy.
Courts possess a spectrum of remedial options:
medical access, hospitalisation under guard, or tailored directives to the detaining authority. Bail, particularly ex parte bail, is only one option and not always the most proportionate.
In a matter of this sensitivity and public importance, the more cautious and balanced approach would ordinarily be to ensure adequate medical care while maintaining the integrity of the judicial process.
5. On Terminology: Precision Must Not Obscure Substance
Considerable emphasis was placed on the use of the phrase “criminal defendant,” with the argument that a person becomes a defendant only upon arraignment.
While terminological precision is important, it must not be elevated to the point where it obscures substantive justice. In public legal communication, such expressions are often used descriptively, not as technical pronouncements on procedural status. An arguable imprecision in language does not invalidate the substance of the concern being expressed.
The law is not served by replacing substantive analysis with semantic absolutism.
6. Exceptional Procedures Must Remain Exceptional
It is trite that there are circumstances where normal criminal procedure may be departed from—just as there are rare cases where proceedings may continue in the absence of a defendant, or urgent orders may be made ex parte. But these remain exceptions, not norms.
The mere existence of an exception does not justify its routine invocation, nor does it warrant public censure of law enforcement officials acting within the bounds of existing court orders.
Conclusion
The debate surrounding this matter would benefit from a recalibration. The real issue is not whether courts possess certain powers in theory, but whether, in the concrete circumstances presented, those powers were properly invoked, communicated, and acted upon.
Until it is shown that a valid court order granting bail was duly made and served, criticism of the EFCC for acting on a subsisting remand order is premature. Equally, caution must be exercised against stretching specialised procedural frameworks beyond their intended scope.
The administration of criminal justice thrives not on sensationalism or abstract theorising, but on context, restraint, and procedural fidelity. It is only by keeping these principles in view that public discourse can meaningfully contribute to, rather than complicate, the rule of law.
I will appreciate it sir, if you can cause this to be published and circulated just as the main story.
O. F. Akeredolu (PhD)
Diamond Alternative Legal Services, C/O, Kunle Ijalana & Co. No 19, Akure/Owo Road, Opposite Pinnacle Filling Station, Fiwasaye Girls Grammer School, Akure, Ondo State.
