EFCC Lead Counsel’s Press Release, Ex Parte Bail Order For Ex-AGF Malami, And The Perils Of Terminological Mischaracterisation

By Sylvester Udemezue

 1. BACKGROUND: On 24 December 2025, a national daily reported under the headline “Court grants Malami interim bail, cites ‘exceptional hardship’” that the High Court of the Federal Capital Territory, Abuja, granted interim bail to the immediate past Attorney-General of the Federation, Abubakar Malami, SAN, on grounds of “exceptional hardship”, pending the hearing and determination of a motion on notice. Shortly thereafter, a public statement attributed to the lead counsel of the EFCC (J.S. OKUTEPA SAN) was issued, denying service of any bail order and asserting, among other things, that:

That statement, and the reasoning behind it, provoked a robust public debate. My intervention is not to defend any individual, nor to prejudge any criminal allegation, but to interrogate a point of law embedded in that assertion, namely: that it is “bizarre” “for any judicial officer to grant bail Ex-parte”. This article explains why I think that assertion does not represent the true position of the law in Nigeria.

 2. THE NARROW LEGAL ISSUE: To be clear, the issue here is not whether the EFCC has acted lawfully nor whether Malami is or isn’t corrupt, nor whether Malami should ultimately be granted bail. It is not whether a particular court order was properly served or subsisting. The sole legal issue is this:

My respectful answer is: No.

3. ORDERS FOR BAIL ARE NOT EXCLUSIVE TO FORMAL BAIL APPLICATIONS: With respect, the statement attributed to EFCC counsel does not represent the correct position of Nigerian law. An order for bail may be made by a court in several procedural contexts, including but not limited to: (a). Pursuant to a formal application for bail; (b). Pursuant to a Motion ex parte brought under Order IV Rules 3 and 4 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 (FREP Rules);(c). Pursuant to an application for habeas corpus, where the court deems it just to do so. Bail is a substantive relief, but the procedure through which it may be granted is context-dependent, not monolithic.

4. THE FREP RULES AND EX PARTE BAIL: The FREP Rules are explicit. Order IV Rule 3 provides that where the court is satisfied that exceptional hardship may be caused to an applicant before service (especially where life or liberty is involved), the court may hear the application ex parte and grant interim reliefs as justice demands. Order IV Rule 4(a) requires that the supporting affidavit demonstrate that delay would cause exceptional hardship. Most decisively, Order IV Rule 4(c)(i) empowers the court, in an ex parte application, to: “Grant bail or order the release of the Applicant forthwith from detention pending the determination of the application.” This provision is neither obscure nor controversial. It is settled law. Accordingly, the suggestion that it is “bizarre” for a court to grant bail ex parte is legally inaccurate.

5. REMEDY FOR AN EX PARTE ORDER: COURT, NOT PRESS: Where a party is dissatisfied with an ex parte order, the proper remedy is well known: Apply to the same court to discharge, vary, or set it aside. It is not to question (via press statements) the competence or authority of the court to have made such an order in the first place. That distinction is critical to the integrity of judicial process.

6. THE “CRIMINAL DEFENDANT” ASSERTION: A MISCHARACTERISATION If the term “bizarre” applies anywhere in this controversy, it more properly applies to the characterisation of Abubakar Malami as a “criminal defendant.” Under Nigerian law, a person becomes a “defendant” only upon arraignment. Before arraignment, such a person is, at best, a suspect. Besides, at the material time, Malami had not been arraigned before any court. Even assuming (purely for argument) that he had been arraigned (which he had not), Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, guarantees the presumption of innocence until guilt is proved by a competent court. To label an unarraigned person a criminal defendant is therefore premature, inaccurate, and constitutionally problematic. Nigerian criminal procedure consistently distinguishes between: (a). Suspect (pre-arraignment), and (b). Accused/Defendant (post-arraignment). This distinction is neither semantic nor academic; it has real legal consequences.

7. WAS THE EX PARTE ORDER FOR BAIL MADE IN A FUNDAMENTAL RIGHTS ENFORCEMENT PROCEEDING?  Some have asked whether the application before the court was indeed brought under the FREP Rules. That is a fair question,and the right question. Engaging the merits is not derailment; it is legal discourse. Please, note that I advance no personal cause here, and I defend no individual. I assert only that law must be stated accurately, even in moments of public controversy.

8. CONCLUSION An order for bail may lawfully be made ex parte in appropriate circumstances. The FREP Rules expressly empower courts to do so where liberty is threatened. An unarraigned person is not a criminal defendant The proper response to an ex parte order is a judicial challenge, not media denunciation. If any position is “bizarre,” it is the assertion that courts lack authority to grant bail ex parte, and the mischaracterisation of a suspect as a criminal defendant.

9. NOTE: I remain open, always to being corrected by reasoned submissions grounded in law. The term “reasoned submissions” is used to describe arguments or presentations that are logically structured, supported by facts, law, and clear reasoning, rather than assertions, emotions, or personal attacks. That is how we all stay on track.

Respectfully,

Sylvester Udemezue (Udems),

08021365545. udems@therealityministry.ngo, udemsbackup@gmail.com.

(26 December 2025)