A Federal High Court in Abuja on Friday refused to grant an application filed by a Lagos-based lawyer, Mr. Olukoya Ogungbeje, seeking an order restraining President Muhammadu Buhari, the Department of State Services and others from re-arresting or taking any “untoward action” against five of the eight judges whose houses were recently raided by DSS operatives.
Justice Gabriel Kolawole declined to grant the prayer shortly after Ogungbeje’s counsel, Mr. Ayo Ogundele, moved the ex parte application on Friday.
In his ruling, Justice Kolawole held that he needed to clear his doubts about the locus standi of the plaintiff, among other issues, after hearing arguments of all parties before he could make a pronouncement on the prayer.
The plaintiff had sought in his motion ex parte, “an order of interim injunction restraining the respondents, their agents, servants, privies, men, officers or anybody deriving authority from them by whatever name called from further arresting, intimidating, arresting, inviting, seizing or taking any untoward action against the arrested and affected honourable judges and judicial officers pending the hearing and determination of the substantive suit.”
The plaintiff had earlier instituted the main fundamental human rights enforcement suit with number: FHC/ABJ/CS/809/2016, on behalf of the affected judges on October 14, 2016.
He sought in the main suit an order awarding N50bn to the affected judges for their harassment, arrest and intimidation by the respondents without recourse to due process of allowing the National Judicial Council to complete its disciplinary process against the judges.
He subsequently filed the ex parte application on October 25, 2016, following his apprehension that the judges arrested in various parts of the country between October 7 and 8, 2016 could be charged and arraigned in court any time soon.
But rather than grant the prayer sought by Ogungbeje in his ex parte application, the judge directed that the motion on notice seeking similar prayer be served on the respondents.
He ordered that five of the six respondents, comprising President Buhari, Director-General of the DSS, Mr. Lawal Daura; the DSS; the Attorney-General of the Federation, Mr. Abubakar Malami; and the Inspector-General of Police, Mr. Ibrahim Idris, to appear in court on November 15 to show cause why the interim restraining order sought by the plaintiff should not be granted.
The sixth respondent to the suit is the National Judicial Council.
The judge ordered that the plaintiff’s motion on notice be served on the respondents and that the respondents would be entitled to respond within seven days of being served.
The judge said his refusal to grant the ex parte application did not amount to resolving the issue of locus standi against the plaintiff.
But he noted that he could not grant the plaintiff’s ex parte application because of his doubts about the issue of locus standi considering the provisions of sections 46(1) and 6(6)(b) of the Constitution when read together.
He also noted that none of the concerned judges was joined either as a plaintiff or respondent, while quoting a common saying that a man’s head cannot be shaved behind him.
He added that he must proceed with caution such that the court, “whose officers are in the eyes of the storm” was not seen to be declaring the conduct of the respondents as illegal through a tainted judicial process.
The judge ruled, “The issue of locus standi remains, in my view, the contentious live issue, because the said provision of the fundamental human rights enforcement procedure rules 2009 which the applicant’s counsel averted the court’s attention to can hardly be read and construed as one that can displace the clear provision of section 46(1) when read with section 6(6)(b) of the 1999 Constitution.
“Let it be well understood that I will not at this stage concern with resolving the issue of the locus standi against the applicant.
“I can only do so after full argument would have been heard from both parties.
“The uncertainty of the applicant’s status in this regard, is an issue, which weighs on my mind in being able to proceed in the granting of the interim order sought ex parte.
“I also observed that none of the concerned or affected judicial officers was made a party either as an applicant or as a respondent. It may well be that their joinder is unnecessary but I am guided by a simple saying that you do not shave a man’s head behind him.
“This in my view, even if the reliefs being sought by the applicant would ultimately be beneficial to the interest of the concerned judicial officers, it is too early in the day for this court to reach a decision that the act of the second, third and fourth respondents were unconstitutional and illegal so as to justify a peremptory judicial intervention to prevent the respondents, the first, second, third, fourth and fifth respondents.
“The law avails that when such doubt exists, the court of first instance must thread softly, lest it may be seen, given the peculiar facts and circumstances of this case as contained in the affidavit filed in support, as exercising the part to the judge in its own cause.
“It is my view that the court as the third arm of government of the federation and whose officers are in the eyes of the storm, with regard to the instant suit must proceed with caution that it must not be seen to fight or judicially resolve an act or conduct which may ultimately be adjudged as illegal through a tainted judicial process or decision.
“These are the constraints, which I have and which seem to weigh on my mind by refusing to grant the applicant’s motion ex parte dated and filed on October 25, 2016.”
The DSS had, between October 7 and 8 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 Nnnamdi 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 President Buhari and the various state governors would approve its recommendation for their sacking. 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 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 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, namely, Justices Ngwuta, Okoro, Ademola, Pindiga and Dimgba.
Ogungbeje had on October 14 filed the substantive suit seeking 10 prayers, among which is an order awarding N50bn against the defendants as “general and exemplary damages.”
He also sought an award of N2m as the cost of the suit.
He also sought an order compelling the DSS to return to the judges the sums of money recovered from them.
He also sought perpetual injunction restraining the defendants from arresting, inviting, intimidating, or harassing the judges with respect to the case.
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 Constitution.
The plaintiff contended in his suit that the raid on the residences of the judges and their arrest was unconstitutional.
He maintained that the arrest of the judges did not follow the law.