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Sunday, 9 October 2016


First and foremost, we need to go through the said press release.
“Judges’ arrest: NBA declares state of emergency

The Nigerian Bar Association on Saturday declared a state of emergency in the judiciary following the midnight arrest of some judges by the Department of State Security Services.
The declaration of the state of emergency was made on Saturday evening in Lagos by the NBA President, Abubakar Mahmoud (SAN).
Mahmoud addressed the press alongside four past presidents of the association – Chief Wole Olanipekun (SAN), Dr. Olisa Agbakoba (SAN); Mr. J.B. Daudu (SAN) and Augustine Alegeh (SAN)
Others in attendance at the declaration, which held at Eko Hotel, Victoria Island, were Prof. Kayinsola Ajayi (SAN), Mr. Yusuf Ali (SAN), Mr. Dele Adesina (SAN), among others.

Mahmoud said two Supreme Court justices, Inyang Okoro and Sylvester Ngwuta were “abducted”, with their families, adding that he had yet to have the full detail of other judges who could have been involved.

Mahmoud said the NBA condemned what it termed the Gestapo-style operation of the DSS.
He announced the constitution of an emergency or crisis management team, comprising past NBA presidents to engage with the government.

Mahmoud, who said it was not the responsibility of the DSS to arrest judges, described the DSS action as an unconstitutional means of intimidating the judiciary and undermining its independence.

The NBA President called on President Muhammadu Buhari to order the immediate release of the arrested judges, vowing that there would be consequences should the demand be ignored.

Mahmoud said, “I want to emphasise again that we are not under military rule and we cannot accept this unholy event and Gestapo-style operation.

“We, therefore, call on President Muhammadu Buhari to immediately caution all the state security agencies and to respect the rule of law and to respect due process.

“Any issues affecting the judicial officers, there are established procedures for handling them and we demand that this constitutional process must be obeyed.

“Given the unfolding nature of the event and the seriousness of the situation, the NBA hereby declares a state of emergency as it affects the affairs of the judiciary and I hereby constitute a crisis management team, comprising all past presidents of the association.

“I want to, on behalf of the association, make the very following clear and unequivocal demands: we demand the immediate and unconditional release of all the judges abducted from about 9pm yesterday (Friday).

“The release must be done immediately and without any conditions. Two, we demand that the Department of State Services should limit itself to its statutory and constitutional responsibilities.

“I’ll be meeting with the CJN later tonight or tomorrow. There will be consequences should these demands are not met.”

Let us have a look at this:

A Suspect may be arrested without a warrant by any of the following persons:
a. a Police Officer,
b. a Judicial Officer,
c. a Justice of the Peace
d. a Private Person.
See these Sections, 10 CPA; 26 CPC; 24 Police Act; and 10 ACJL.
The reasonable inference from the above position is that any person whom he (any of the person mentioned above) suspects upon reasonable grounds of having committed an indictable offence subject to the applicable provisions of the law may be arrested.
Among persons that can be so arrested in line with law are,
a. any person who commits any offence in his presence (even though offence is one for which offender cannot be arrested without warrant),
b. any person who obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape or attempts to escape from lawful custody,
c. any person in possession of anything reasonably suspected to be stolen property,
d. any person whom he suspects upon reasonable grounds to commit an offence punishable in Nigeria outside the country,
e. any person having in possession of any instrument of house breaking without lawful excuse,
f. any person against whom a warrant of arrest has been issued by a court of competent jurisdiction in the state,
g. any person who has no ostensible means of subsistence and who cannot give a satisfactory account of himself, and so on.
Meanwhile, what concerns me particularly in this regard is the submission made by the NBA to the effect that the arrests effected so far on some Judges by the DSS was unconstitutional and unholy having taken semblance of GESTAPO-STYLE OPERATION.
“it was not the responsibility of the DSS to arrest judges, the DSS action is unconstitutional means of intimidating the judiciary and undermining its independence”.

It is not disputable that among persons allowed in law to make arrest are Judicial Officers whether magistrate or judge, Justice of Peace and private persons. The so called arrests could be made pursuant to occurrence of some conditions some of which are herein highlighted above. I think sections 15 CPA/ACJL, 12 and 13 CPA, 28(d) CPC, 21 ACJL and some decided cases would surely be helpful in this regard. In the case of Nweke v. The State (1965) 1 ALL NLR 114, the Supreme Court held that a private person can arrest without warrant any person whom he reasonably suspects of having committed a felony. See also Abadallabe v. Borno Native Authority (1963)1 ALL NLR.

The point I am trying to make is that if an ordinary private person is allowed in law to make an arrest in some special cases and flowing from this, it appears grossly erroneous to conclude that DSS or SSS (a body created by law for the state security purposes) has no responsibility to arrest and arrest made in connection with the “suspect judges” is unconstitutional. The position of the law is even that a person who resists by force an attempt by a private person to arrest him in the exercise of his right cannot claim the benefit of self defence- Abdullahi v. Borno Native Authority. Effect of this is that Gov. Wike may not be too far from being culpable. I am not oblivious of the section 308.

The DSS/SSS equally has a legal backing to perform certain functions some of which include the prevention, detection and investigation of economic crimes of National security dimension, terrorist activities, inter-group conflicts, threats to law and order and so on.

What seems to be very clear here is that elevation of any person to the Bench has not become a shield to estop arrest, investigation and possible prosecution of any judge suspected of having committed a crime in Nigeria as at today. Moreso, the immunity clause does not extend to their office. The blanket word of section 24 of the Police Act and other similar provisions or its equivalent in various laws have not excluded the judges from persons capable of being arrested.
The NBA further betrays my expectation from such a noble body when in the said press release began to issue warning to the President that the arrested judges be released as if there is a special law that exonerates a judge from law even if he is caught infragilata delicio raping a thirteen-year old girl in a cinema. As a body that prides itself as a repository of law and order I would have been happy to see it testing its legal arsenal in any available nearest court on Monday aggressively praying its Lords to make categorical pronouncements over the development.

However, NBA is yet to remember to issue such a “warning” to the NJC having failed to proceed to prosecute some judges it found in the recent time involved in so many unethical conducts equivalent to various offences. Assuming without conceding that the Federal Government is wrong to have continued to incarcerate Dasuki, Kanu and many others, what legal position, no matter how frivolous, has the NBA made so far in respect of same? Last year Transparency International released Classified Report on so many barbaric, inhuman and extra-judicial killings the Nigerian army perpetrated in the North East under the guise of fighting invisible Boko Haram. I presume the avowed disciples of rule of law were not having light then to watch television and have knowledge of that so as to goad them to demand damages from the federal government on behalf of the victims of this blood-sucking evil soldiers. Oh sorry! I just remember that no judges can be so arrested in America, London, Canada, Russia or China?

Is the NBA prepared to tender an apology if it turns out that the DSS/SSS complied with the required procedures in so arresting the innocent judges considering the circumstance of the arrests? What investigation has it done before calling for a press conference? I think such a step is better taken by politicians than lawyers who are reputed for being learned.

More than coincidence than designed, one of the SANs and former President of the body who was at the NBA press briefing in respect of the arrests just said this in today’s Saturday edition of the Punch when asked to react to the Federal Government and some members of the public’s accusation against the NBA of aiding corruption.
“And what baffles me is that some high lawyers, who should know better, also accuse some lawyers of defending looters? To hell with anybody who has looted the treasury. I believe in my profession and I thank God for what I am. I am a fulfilled person and don’t want any position from any government, but then government should allow those of us who are privately engaged to do our work”. 

Meanwhile and in a final submission, I wish to quote from Kanu Agabi, another SAN, the erstwhile Minister of Justice who in a paper delivered at the 2001 NBA conference in Calabar stated,
“We (Lawyers) must be worthy ambassadors wherever we are. We must uphold that tradition of excellence for which our profession has become famous. We will never be able to do so unless we strive to educate and improve ourselves..., custom demands that we be called learned once we are qualified to practice law. But duty demands that we go beyond the dictates of custom and ensure that we are truly learned. A call to Bar is a call to sustained and relentless sacrifice. Everyone of us must be vigilant to acquire and to promote learning, discipline and culture, particularly at this time when our country is menaced by every known evil.., instead, our profession is fast becoming characterized by intolerance, a rigid and sometimes intemperate refusal to hear the other side, ...a baseless assumption that we are right and that all those who differ from us are wrong. And we carry our self-righteousness so far as to victimize and stigmatize or even kill those whose actions are opposed to ours".


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