Justice Mary Odili

By Aare Afe Babalola

LAST WEEK, there was a nationwide media report of the invasion of the residence of Honourable Justice Mary Peter-Odili consequent upon a Search Warrant issued by an FCT Chief Magistrate on the basis of what was described as “illegal activities suspected to prove (sic) to crime at No. 9, Imo Street, Maitama, Abuja”.

Though it was later found, after the invasion, that the Search Warrant neither contained the details or the name of the person carrying out the alleged “illegal activities”, nor did it contain the actual address of the nation’s second highest ranking judicial officer whose premises was, pursuant to the said Warrant, unlawfully invaded.

This invasion is unfortunately reflective of the general attitude of law enforcement agencies in undermining the judiciary and its officers; and one requires urgent inquisition from the authorities.

While the details surrounding the issuance of the Search Warrant which formed the basis of the invasion remain sketchy, particularly with the Chief Magistrate who issued the Warrant reportedly revoking same on the ground of the concealment of some facts by the police, it yet remains a thorny issue which calls for urgent redress, particularly in view of the previous invasions carried out by law enforcement agencies in the private residence of judicial officers.

Back in 2016,the homes of some Supreme Court justices were searched by officers of the Directorate of State Services. For a long time, arguments went back and forth from several quarters as to the propriety of what seemed a brazen attack on the Nigerian judiciary. Up to the time of writing, the wrongful invasion had not attracted any punishment to justify it in the first place.

Five years later, law enforcement agents again invaded the private residence of the country’s second most senior judicial officer on the laughable and ridiculous allegation of illegal activities. In reprise, this move had been severely condemned from all quarters for being unconstitutional, illegal, and an affront to the entire judiciary. In a press release, the Nigerian Bar Association noted that the invasion is “an affront on the Judiciary and grossly undermines the democracy that we profess to practice”.

The House of Representatives Committee on Judiciary, in lending its voice to equally condemn the siege in view of the 2016 incidence, reportedly stated as follows: “The siege is reminiscent of the 2016 incident, where in the beat of the night, security agencies invaded private residences of judicial officers, which subsequently turned out as an undeserved phenomenon, and a dent on our professed independence of the judiciary, and demanding protection for our judges.

While reportedly describing the invasion of Honourable Justice Odili’s residence as an assassination attempt, the Executive Governor of Rivers State, NyesomWike, noted as follows:

It is curious if you look at the application made by the police to obtain the search warrant from a Magistrate Court to search the residence of Number 9 Imo Street. There is nothing like Imo Street. What we have is Imo River. Justice Mary Odili’s residence is not Number 9 but Number 7. Can security operatives apply to a magistrate court as they said, over illegal activities taking place in Number 9 Imo Street to them? That means that you know where the illegal activity is taking place because you couldn’t have applied for a search warrant when you don’t know where illegal activities are taking place.

The procedure for the issuance of search warrants in Nigeria

Section 37 of the Constitution of the Federal Republic of Nigeria guarantees the right of citizens to privacy, including their homes, correspondence, telephone conversations and telegraphic conversations. This right, by Section 45(1) supra is, however, subject to the interest of defence, public safety, public order, public morality, or health, or for the protection of the rights and freedom of other persons.See also Enyinnaya v. State (2014) LPELR-22924(CA).

ALSO READ: S-East/S-South Professionals condemn invasion of Justice Mary Odili’s house

Under these exceptions, and particularly in the detection, prevention, or prosecution of a crime, it may be necessary for law enforcement agents to invade the privacy of a citizen, however, a valid search warrant must have been issued in accordance with provisions of the law. Section 144(1) of the Administration of Criminal Justice Act makes provisions on instances in which search warrants may be issued. It provides:

1. Where a court or Justice of the Peace is satisfied by information on oath and in writing that there is reasonable ground for believing that there is in any building, ship, carriage, receptacle, motor vehicle, aircraft, or place:

a. anything upon or in respect of which any offence has been or is suspected to have been committed;or

b. anything which there is reasonable ground for believing will afford evidence as to the commission of an offence; or

c. anything which there is reasonable ground for believing is intended to be used for the purpose of committing an offence, the court or Justice of the Peace may at any time issue a warrant, called a search warrant, authorising an officer of the court, member of the police force, or other person named to act in accordance with subsection (2) of this section.

The operative clause for the issuance of any search warrant in Nigeria is the reasonable ground for the belief by the magistrate before whom such application is brought that the subject residence contains anything in respect of which an offence has been, or is being committed, or that can be used as evidence of the commission of an offence or is intended for the purpose of committing an offence.

It, therefore, connotes that a search warrant cannot be issued on the mere ipse dixit of any person alleging the commission of a crime. In Ojoma v. State (2014) LPELR-22942(CA), it was held as follows: “The appellant led no evidence to show that there was in the native doctor’s house anything upon or in respect of which any offence has been or is suspected to have been committed or, anything which there is reasonable ground for believing will afford evidence as to the commission of any offence or anything which there is reasonable ground for believing is intended to be used for the purpose of committing any offence.”

A magistrate before whom an application for the issuance of search warrant has the bounden duty to be convinced, on the strength of the facts presented by the supporting affidavit, that the conditions enumerated in Section 144(1) above are satisfied. On the flip side, a person who deposes to the supporting affidavit must equally adduce sufficient facts to sway the discretion of the magistrate in favour of issuing the said Warrant.

Where, however, it turns out that the Search Warrant was issued upon a false statement, the deponent may not only be criminally culpable for perjury, but he may also be liable for the tort of malicious prosecution. In Koffi & Ors. v. Tuaweri & Ors. (2017) LPELR-45211(CA), the Court held thus: “A defendant who maliciously makes false statement against a plaintiff and causes a judicial act like the issue of a summons or warrant of arrest, to the prejudice of the plaintiff, will be liable for malicious prosecution even though he may not technically have been the prosecution in the strict sense

What the Judiciary and Buhari must do

Against the backdrop of the foregoing, and particularly considering the facts surrounding the type of Search Warrant (containing a wrong address) executed in the premises of Honourable Justice Mary Peter Odili, and in view of the Magistrates subsequent revocation of the Warrant on ground of concealment/non-disclosure of facts, the government and the Judiciary must order extensive investigations into the unfortunate incidence.

The Attorney-General of the Federation recently denied any knowledge or involvement in the invasion. In pointing out the apparent ambiguities inherent on the face of the supporting documents, he further noted that the “Joint Panel Recovery” in whose authority the Search Warrant was applied for does not exist, neither does the name “Ghost Account for Local Whistle Blowers & Assets Tax Recovery Panel”.

However, it is not enough for the Honourable Attorney General of the Federation to dissociate himself from this occurrence. He must go the extra mile of causing extensive investigations to be made and unravel the mystery surrounding the invasion. Being the Chief Law Officer of the Federation, he must order the prosecution of those found culpable, including the person who deposed to the supporting Affidavit.

In so doing, not only will he be restoring the sanctity of the nation’s judicial system, but he will also be seen to have restored public confidence in the administration of justice. Further the National Judicial Council should investigate the laughable search warrant which was subsequently revoked after irreparable damage had been done to the Judiciary.

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