Judges’ Arrest: Report from Presidency Says DSS Acted in Accordance with Law

• Dismisses Justice Ademola’s claim he was coerced into signing statement
• Buhari, AGF, DSS sued over arrests

By Tobi Soniyi in Abuja

An internal legal review ‎undertaken by the presidency on the raid of judges’ residences and their arrests by the Department of State Services (DSS), has concluded that the DSS acted in accordance with the extant laws and legal provisions.

A report from the presidency, according its officials, concluded that the DSS had policing powers of its own.

Speaking on the report, a top official in the presidency informed THISDAY that‎ the legal review considered every aspect of law involved in the raids and arrests, including a review of the new Administration of Criminal Justice Act (ACJA) procedures, issuance of search warrants, and the role and place of the National Judicial Council (NJC), among others.

In its conclusion, the report, which was made available to THISDAY, affirmed that “the actions of the DSS in the arrest and search of the premises of judges and justices can be placed firmly within the ambit of the law, sentimental and emotional considerations notwithstanding”.

The presidential legal review added that it was “pertinent to note that Nigeria is not the first country to investigate and prosecute judges that are suspected to have committed acts of crime”.

A presidency source cited the example of the Federal Bureau of Investigation (FBI) in the United States of America – a body similar to the DSS – which has at various times, prominently in January 2013, May 2014 and November 2015, arrested a number of judges for bribery, corruption and other similar offences; subjected the judges to trial, at the end of which the convicted judges were imprisoned.

The source also cited Ghana and Kenya where judges suspected to have engaged in corruption were prosecuted.

He also disputed a claim by one of the judges (Justice Adeniyi A. Ademola) that he was forced to sign a confessional statement at gunpoint, saying: “What really happened was that the judge was not arrested until his lawyer came on the scene on his request and affirmed that the search warrants were in order.”

Besides, the presidency official added that while some of the judges, in their statements, said the foreign currencies found on them were from their unspent estacodes, a claim said to be untenable considering the sums of money involved, another judge was said to have explained away the huge sums of money as proceeds from his rice selling business.

The highlights of the presidential legal review are explained below:

When and How Can Search and Arrest Warrants be Executed?

On the issue of search warrant, it was discovered that the DSS followed Section 148 of the ACJA that states: “A search warrant may be issued and executed at any time on any day, including a Sunday and public holiday.”

On the issue of how the search should be conducted, the presidential legal review noted: “On how the search should be conducted, Section 149 of the ACJA provides that ‘(1) Where any building or other thing or place liable to search is closed, a person residing in or being in charge of the building, thing or place shall, on demand of the police officer or other person executing the search warrant, allow him free and unhindered access to it and afford all reasonable facilities for its search.

‘(2) Where access into the building, thing or place cannot be so obtained, the police officer or other person executing the search warrant may proceed in the manner prescribed by Sections 9, 10, 12 and 13 of this Act’.”

The presidential review report added that “Sections 9, 10, 12 and 13 relate to the use of force in the search of a person arrested; inventory of items recovered in the search; entry of premises where a suspect to be arrested has entered into; and breaking open of any outer or inner door or window of any house or place whether that of the suspect to be arrested or any other person or otherwise effect entry into such house or place”.

These provisions are similar to the provisions of Sections 7 and 112 of the Criminal Procedure Law and were followed by the DSS, the report noted.

Furthermore, it stated that “by Section 111 of the Criminal Procedure Law, a search warrant may be issued and executed on any day including a Sunday or public holiday. It shall however be executed between the hours of five (5) o’clock in the forenoon and eight (8) o’clock at night, but the court may, in its discretion, authorise by the warrant the execution of the warrant at any hour.

“Where the court authorises the execution of a search warrant at any hour other than between the hours of 5 o’clock in the forenoon and 8 o’clock at night, such authorisation may be contained in the warrant at the time of issue or may be endorsed thereon by any magistrate at any time thereafter prior to its execution”.

On the execution of an arrest warrant, Section 43(1) of the ACJA provides that “a warrant of arrest may be executed on any day, including a public holiday”.

The review also touched on several other aspects of the search and warrant as follows:

Who Issues a Warrant of Arrest?

By Section 36 (1)(c) of the ACJA, a warrant of arrest is issued by a judge or a Magistrate. A warrant of arrest may be issued on any day, including a Sunday or public holiday. See Section 38 of the ACJA.

Under the Criminal Procedure Code Law Cap. 41 Laws of Sokoto State of Nigeria 1996, magistrates and Justices of the Peace have the power to issue warrants of arrest. See Section 56 of the law.

Can Arrests be Effected in the Absence of an Arrest Warrant?

Section 44 provides that “a warrant of arrest may be executed notwithstanding that it is not in the possession at the time of the person executing the warrant but the warrant shall, on the demand of the suspect, be shown to him as soon as practicable after his arrest”.

By Section 18(1)(d) and (j) of the ACJA, a police officer may, without an order of court and without warrant, arrest a suspect in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to the thing; or for whose arrest a warrant has been issued or whom he is directed to arrest by a judge, magistrate, Justice of the Peace or superior police officer.

Section 10 of the Criminal Procedure Law contains similar provisions. It provides that “any police officer may, without an order from a magistrate and without a warrant, arrest:

• Any person whom he suspects upon reasonable grounds of having committed an indictable offence against a federal law or against the law of any other state, unless the written law creating the offence provides that the offender cannot be arrested without a warrant; and
• Any person in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to such thing.

The presidential legal review then dealt with the issue of why the DSS and not the Nigeria Police was used in the arrest of the judges.

Who Can Execute Search and Arrest Warrants?

“One of the arguments in the polity today is that the arrest of the judges/justices ought to have been carried out by the Nigeria Police rather than the DSS. This argument is premised on the provisions of Section 4 of the Police Act 1967 (Police Act), which outlines the general duties of the police to include ‘the prevention and detection of crime, the apprehension of offenders’,” the review panel noted.

It said: “To hold such view without having recourse to the provisions of other laws will be too unproductive.

“The question to ask here is: who is a police officer? The answer to this lies not only in the Police Act, but also in other extant laws such as the ACJA, the EFCC Act 2004, and the ICPC Act 2000.

“Whereas Section 2 of the Police Act defines a police officer as any member of the force, the ACJA defines a police officer to include any member of the Nigeria police established by the Police Act or where the context so admits, shall include any officer of any law enforcement agency established by an Act of the National Assembly.”

According to the review, “The bone of contention in the public discourse hinges on whether the DSS has the power to undertake the operations it undertook in relation to the arrested judges/justices.”

To determine whether the action of the DSS was intra or ultra-vires, it is important to consider the mandate of the DSS as enshrined under the law.

By Section 2(3) of the National Security Agencies Act 1986, Cap. 278 LFN 1990, the State Security Service is charged with responsibility for –

“(a) the prevention and detection within Nigeria of any crime against the internal security of Nigeria; (b) the protection and preservation of all non-military classified matters concerning the internal security of Nigeria; and

(c) such other responsibilities affecting internal security within Nigeria as the National Assembly or the president, as the case may be, may deem necessary.”

The report also acknowledged that arguments had been proffered on the propriety of a serving judge/justice being tried by his/her peers without first being removed from his/her position and contended that “there is no law that invalidates the trial of a judge/justice merely because he/she is still serving”.

“Moreover, where such judge/justice is cleared of all wrongdoing by the justice system, no law precludes him/her from returning to his/her duty post,” the panel stated in its report.

Buhari, DSS, Others Dragged to Court 

Even as the presidency attempted to make a case for the arrest of the judges, a Lagos-based lawyer, Mr. Olukoya Ogungbeje, filed a suit against President Muhammadu Buhari, the DSS and its Director-General, Lawal Daura, and others for allegedly violating the rights of the seven judges whose houses were raided between October 8 and 9

He is demanding the sum ‎of N50 billion as general and exemplary damages.

He joined the Attorney-General of the Federation (AGF) and Minister of Justice, Abubakar Malami, the Inspector-General of Police (IG), Ibrahim Idris, and the NJC as defendants.

In the suit filed at the Federal High Court, Abuja, on October 14, the plaintiff claimed that the arrest of the judges, without recourse to the NJC, was unlawful and amounted to humiliating them.

The plaintiff described the raid on the residences of the judges and their arrest as unconstitutional. He argued that the arrest of the judges did not follow the law.

He said the DSS operations violated the rights of the judges under Sections 33, 34, 35, 36, and 41 of the 1999 Constitution. He is also seeking to be awarded N2 million as the cost of the suit.

He asked the court to compel the DSS to return to the judges the sums of money recovered from them and also asked for an order of perpetual injunction restraining the defendants from arresting, inviting, intimidating or harrassing the judges with respect to the cases.

The DSS, penultimate weekend, arrested Justices Sylvester Ngwuta and John Okoro of the Supreme Court; Justice Ademola of the Federal High Court, Abuja, and Justice Muazu Pindiga of the Federal High Court, Gombe Division. Justice Nnamdi Dimgba’s residence was also searched but he was not arrested.

Others were arrested had already been suspended by the NJC, pending the approval of the council’s recommendation on them.

They are a former Chief Judge of Enugu State, Justice I. A. Umezulike; the Presiding Justice of the Court of Appeal, Ilorin Division, Justice Mohammed Tsamiya; and a judge of the Kano State High Court, Justice Kabiru Auta.

The DSS said it recovered large sums of money in Nigerian and foreign currencies from three of the judges during the raid on the houses of the seven judicial officers.

All the seven of them were released on self-recognition by the DSS.

The suit to enforce the judges’ rights was filed on behalf of Justices Ngwuta, Okoro, Ademola, Pindiga and Dimgba, who are still in service.

In a 39-paragraph affidavit he deposed to in support of the suit, Ogungbeje averred: “That the 1st (President Buhari), 2nd (DG of DSS), 3rd (DSS), 4th (AGF), and 5th (IG) respondents submitted no petition by the affected to the 6th respondent (NJC).

“That the 6th respondent is the only body empowered by the Constitution of the Federal Republic of Nigeria to discipline judges and judicial officers in Nigeria.

“That the judiciary is an independent arm of government in Nigeria and separate from the executive and the legislature.

“That this illegal and unconstitutional action by the 1st, 2nd, 3rd, 4th and 5th respondents have been roundly condemned by the Nigerian Bar Association.

“That the 2nd (DG of DSS), 3rd (DSS), and 5th (IG) respondents carried out their action which brazenly infringed upon the rights of the affected five judges without lawful excuse or recourse to the 6th respondent.

“That the 2nd, 3rd and 4th (AGF) respondents have no right under the law and Constitution of the Federal Republic of Nigeria to discipline, infringe upon the rights of the affected judges.

“That due process of law has not been followed in the arrest, humiliation, harassment and detention of the affected judges by the armed agents and officers of the 2nd, 3rd, 4th and 5th respondents.

“That the affected judges have not committed any crime or wrong known to law to

 warrant their arrest, harassment, humiliation and detention, the forceful invasion and siege of their residential houses and the forceful seizure and confiscation of their monies and properties without any court order.

“That due process of law was not followed and carried out by the 2nd, 3rd and 5th respondents before the arrest, humiliation, harassment, embarrassment, hounding, detention and forceful, seizure and confiscation of their monies.

“That the officials and agents of the 2nd, 3rd and 5th respondents have threatened and vowed to continue to use unconstitutional means to arrest, humiliate, harass, pillory, hound, intimidate, and detain the judges and judicial officers of superior courts in Nigeria without recourse to the 6th respondent as the constitutionally recognised body to discipline erring judges.”