By Sylvester Udemezue
I read a piece titled, “A Rejoinder To Sylvester Udemezue’s Piece On EFCC Lead Counsel’s Public Statement On Ex Parte Bail Order For Ex-AGF Malami” written by a respected learned friend, O.F. Akeredolu, PhD. I am sincerely grateful to Dr. Akeredolu for the rejoinder and for engaging my article with seriousness. That engagement itself affirms the value promised in my concluding note: correction by reasoned submissions grounded in law. However, with due respect to my dear learned friend, his rejoinder proceeds on a fundamental misapprehension of the scope, target, and gravamen of my original intervention. This surrejoinder is therefore necessary (not to prolong controversy) but to restore analytical precision.
*WHAT MY ARTICLE DID NOT ADDRESS*
At the outset, it is important to restate what my article did not purport to do. I did not:
(1). Adjudge whether the EFCC acted lawfully overall;
(2). Determine whether Malami should or should not be granted bail;
(3). Pronounce on whether service of the ex parte order was properly effected; or
(4). Assert that the EFCC was already in contempt of court.
Those questions , particularly service, may be procedurally relevant in practice, but they were not the subject of my article.
*THE NARROW ISSUES MY ARTICLE ADDRESSED (AND ONLY THESE)*
My published opinion interrogated only three discrete legal points, and no more, namely:
(1). The blanket assertion attributed to EFCC Lead Counsel that it is “most bizarre” for a court to grant bail ex parte;
(2). The propriety of resorting to social media to challenge or delegitimise a court order, rather than invoking judicial remedies; and
(3). The description of an unarraigned suspect as a “criminal defendant.”
Dr. Akeredolu’s rejoinder largely sidesteps these points and reframes the debate around service and context, thereby answering questions I did not pose, while leaving the core propositions unaddressed.
*ON THE ARGUMENT BY DR. AKEREDOLU REGARDING “SERVICE” OF THE EX PARTE ORDER*
The emphasis placed on service of the ex parte order, while procedurally relevant, does not answer the question I raised. My critique was not that the EFCC should have complied with an order it had not been served with; rather, it was that it is legally incorrect to assert that courts lack the power to grant bail ex parte, or that such an act is inherently “bizarre.” Whether or not service was effected does not transform a legally authorised judicial act into a legal impossibility. A court either has the jurisdiction and procedural authority to make an order, or it does not. Service affects enforceability, not legality.
*ON THE FREP RULES AND EX PARTE BAIL*
Dr. Akeredolu suggests that reliance on the Fundamental Rights (Enforcement Procedure) Rules, 2009 (FREP Rules) is misplaced because the matter was not framed as a fundamental-rights action. With respect, this conflates two separate inquiries:
(1). Whether the application before the court was in fact brought under FREP; and
(2). Whether Nigerian law recognises the power of courts to grant bail ex parte under FREP.
My article/opinion addressed only the latter. Order IV Rules 3 and 4 of the FREP Rules expressly empower courts, in appropriate circumstances, to grant interim reliefs, including bail, ex parte where the life or liberty of the application is threatened. For the avoidance of doubts, Order IV Rule 3 provides: “The Court may, if satisfied that exceptional hardship may be caused to the Applicant before the service of the application especially when the life or liberty of the applicant is involved, hear the applicant ex parte upon such interim reliefs as the justice of the application may demand”. That proposition is doctrinally unassailable. Whether FREP was properly invoked in Malami’s case is a merit question, to be tested before the court, not a basis for declaring ex parte bail “bizarre.”
*ON “EXCEPTIONAL HARDSHIP” AND JUDICIAL DISCRETION*
I did not argue that exceptional hardship automatically translates into ex parte bail, nor that bail is the only possible relief. Courts retain discretion to fashion appropriate interim remedies. Order IV Rule 4(c)(i) to (v) expressly sets out the various orders or reliefs the court may grant in the circumstances:
“Where the application is made ex parte for interim reliefs, the Court may make the following orders:
(i) Grant bail or order release of the Applicant forthwith from detention pending the determination of the application;
(ii) Order that the Respondent against whom the order for the release of the applicant is sought be put on notice and abridge the time for hearing the application;
(iii) Order the production of the Applicant on the date the matter is fixed for hearing if the Applicant alleges wrongful or unlawful detention.
(iv) Grant Injunction restraining the Respondent from taking further steps in connection with the matter or maintaining status quo or staying all
actions pending the determination of the application;
(v) Any other order as the Court may deem fit to make as the justice of the case may demand”.
Discretion presupposes jurisdiction. And the existence of alternative remedies does not negate the court’s power to grant bail ex parte where justice so demands. To suggest otherwise is to collapse discretion into prohibition.
*ON THE TERM “CRIMINAL DEFENDANT”*
The rejoinder by Dr Akeredolu downplays the mischaracterisation of Malami as a “criminal defendant” as mere descriptive imprecision. With respect, that understates the issue. Under Nigerian criminal procedure, the distinction between a suspect and a defendant is not rhetorical; it is juridical. A person becomes a defendant only upon arraignment. This distinction engages constitutional protections, including the presumption of innocence under section 36(5) of the Constitution.Terminology matters in law, particularly when used by senior counsel speaking publicly on an ongoing matter. Precision is not pedantry; it is fidelity to legal status.
*ON THE PROPER RESPONSE TO AN EX PARTE ORDER*
Even assuming one is dissatisfied with an ex parte order, Nigerian law is settled on the remedy: apply to discharge, vary, or set it aside, or appeal. What the law does not contemplate is a public denunciation of the court’s competence to have made the order at all. That distinction lies at the heart of my critique and remains unanswered in the rejoinder.
Further, and contrary to Dr Akeredolu’s representation, my article was not an attack on the EFCC, nor a defence of Malami. It was a defence of an accurate statement of law, procedural discipline, and constitutional restraint. To insist that courts possess only those powers we are comfortable with in moments of public anger is to weaken, not strengthen, the rule of law.
Finally, I agree that the debate would indeed benefit from recalibration, but recalibration begins with engaging the actual propositions advanced, not substituting them with adjacent procedural concerns. Until it is shown that Nigerian law renders ex parte bail legally aberrant, or that courts lack authority to grant it in appropriate circumstances, the assertion that such orders are “bizarre” remains unsustainable.
I remain, as stated, open to correction: by law, by authority, and by reasoned argument.
Respectfully,
Sylvester Udemezue (Udems).
08021365545.
udemsbackup@gmail.com.
(27 December 2025)
