Mr Olukoya Ogungbeje, a Lagos-based lawyer, has filed a N50bn suit against President Muhammadu Buhari, the Department of State Services and its Director-General, Lawal Daura, along with others for allegedly violating the rights of judges whose houses were raided by the DSS operatives between October 8 and 9.
The crackdown of allegedly corrupt judges, has stirred great rift between the Judiciary and the Executive even as Nigerians debate over the rule of law.
Others joined as defendants in the suit, with number FHC/ABJ/CS/809/16, are the Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami (SAN); the Inspector-General of Police, Ibrahim Idris; and the National Judicial Council.
According to The Punch, Ogungbeje filed the suit before the Federal High Court in Abuja on Friday, October 14.
He alleged that the arrest of the judges without recourse to the NJC was unlawful and amounted to humiliating them.
He said the DSS operations violated the rights of judges under sections 33, 34, 35, 36 and 41 of the 1999 Constitution.
The plaintiff sought 10 prayers, among which is an order awarding N50bn against the defendants as “general and exemplary damages.”
He also sought to be awarded N2m as the cost of the suit.
The lawyer also sought an order compelling the DSS to return to the judges the sums of money reportedly recovered from them.
He also sought a perpetual injunction restraining the defendants from arresting, inviting, intimidating or harassing the judges with respect to the case.
The DSS had, between Friday and Saturday, arrested Justices Sylvester Ngwuta and John Okoro of the Supreme Court; Justice Adeniyi 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, who were arrested, had been placed on suspension by the NJC pending the time Buhari and the various state governors would approve its recommendation for the sacking of the affected judges.
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 the 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 raids on the houses of the seven judiciary officers.
The seven of them had since been released on self recognition by the DSS.
But Ogungbeje’s suit is restricted to five of the arrested judges, who are still in active service – Justices Ngwuta, Okoro, Ademola, Pindiga and Dimgba.
The plaintiff contended in his suit that the raids on the residences of the judges and their arrest were unconstitutional.
He maintained that the arrest of the judges did not follow the law.
He stated in a 39-paragraph affidavit, which he deposed to in support of the suit,
“That the 6th respondent (NJC) is the only body empowered by the Constitution of the Federal Republic of Nigeria to discipline judges and judiciary 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 (President Buhari), 2nd (DG of DSS), 3rd (DSS), 4th (AGF), and 5th (Inspector-General of Police) respondents have been roundly condemned by the Nigerian Bar Association.
“That the 2nd (DG of DSS), 3rd (DSS), and 5th (IGP) 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.”
Meanwhile, as the furor over the raid on the homes of judges rages, the Presidency has endorsed the action taken by the Department of State Service, DSS, saying the agency complied fully with extant laws. This came as Minister of Justice and Attorney-General of the Federation, Mr Abubakar Malami, yesterday, challenged two judges of the Federal High Court to proceed to court and prove any case they have against him, instead of resorting to blackmail and falsehood.
The AGF’s comments, however, drew the ire of senior lawyers in the country, even as a legal practitioner, Mr Olukoya Ogungbeje slammed President Muhammadu Buhari with a N50 billion suit for violating the rights of judges, whose houses were raided by operatives of the DSS.
The Presidency’s verdict is contained in a detailed review made available to Vanguard last night. In the review, the Presidency also noted that the DSS acted in accordance with the extant laws of the land, adding that the agency had policing powers of its own.
The legal review, a report now under active consideration in the Presidency, checked every aspect of law involved in the raids-sting operation-arrests, including a review of the new Administration of Criminal Justice procedures, issue of search warrants, the role and place of the National Judicial Council, among several others.
In its conclusion, the review report 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 is “pertinent to note that Nigeria is not the first country to investigate and prosecute Judges that are suspected of commission of acts of crime.
“The Federal Bureau of Investigation, FBI, in the United States of America (a body similar to DSS) 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.
“Nearer home, neighbours like Ghana and Kenya had also cleansed their respective judiciaries through investigation and prosecution of judges suspected of commission of corruption.”
A Presidency source involved in the review added that while a particular federal judge had alleged that he signed at gunpoint, what really happened was that the judge was not arrested until his lawyer came to the scene on his request and affirmed that the search warrants were in order.
Besides, the source 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 the huge sums of money away as proceeds of his rice selling business.
When and how can search and arrest warrants be executed? According to the legal review ordered by the Presidency last week, on the issue of search warrant, it was discovered that the DSS followed Section 148 ACJA, which states that: “A search warrant may be issued and executed at any time on any day, including a Sunday and public holiday.”
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.
“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 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 followed by the DSS,” the review noted. On the execution of an arrest warrant, Section 43 (1) ACJA provides that “a warrant of arrest may be executed on any day, including a public holiday.”
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.
The Presidential legal review, then determined that, indeed, the DSS has sufficient police powers.”
Reacting to the development, a retired Supreme Court Justice, Samson Uwaifo, SAN, said at the weekend: “A corrupt judge is more harmful to the society than a man who runs amok with a dagger in a crowded street.”
He said: “If a judge is corrupt, he is no longer a judge, he is a thief and, therefore, should be treated as such, according to the law and sent to jail.”
He added that focus should be placed on how to eradicate corruption from the judiciary.
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