Sylvester Udemezue
I read a story under the headline, “WE’VE ARRESTED RAIDERS OF JUSTICE ODILI’S RESIDENCE, SAYS IGP”! wherein it is reported thus: “The Inspector General of Police (IG) Alkali Usman has said operatives who raided the residence of Supreme Court judge, Justice Mary Odili have been arrested. He disclosed this during an interview at a two-day capacity building workshop for security operatives in Lagos and Ogun organised by the Assistant Inspector General (AIG) Zone Two, held at Victoria Island, Lagos”. (See Thenigerialawyer of November 2, 2021).
Crucial Questions
This raises two crucial questions: The first question is, “Who is to blame for the unfortunate invasion of Hon. Justice Mary Peter-Odili’s residence?” The Police officers who conducted the raid? The Lawyers (whether they’re Police officers or other Lawyers, however highly or lowly placed) who are found to be involved in procuring the bizarre order (Search Warrant)? The Magistrate who gave the order (Search Warrant) and hence, authorised the raid?
All of the above? Only numbers (2) and (3) above? Or only number (3) above?
In my humble opinion, the correct answer could be Number 4 or Number 5, depending on the circumstances and perspectives . A second question is, “What’s the level of involvement and culpability of all involved in the shameful act”? There are three principal actors in the imbroglio. The Police. Lawyers. And the Magistrate. Let’s take them one after another.
Executing Police Officers (Police Officers Who “Executed” the Search Warrant)
I do not think the security agents involved in the raid have much blame, unless in the execution they had gone outside the letters and contents of the order of court (Search Warrant). Generally, an order of court is meant to be obeyed. Rule of Law demands that all orders issued by a competent Court, unless and until set aside, overruled or otherwise repealed, must be obeyed to the letter. It is immaterial that anyone or group thinks the order or orders are valid, invalid, or whatever.
Ogundare, JSC, in the case of ROSSEK v A.C.B. LTD. (1993) 8 NWLR (PT. 312) 382 at pages 434-435 E-C treated the matter extensively. Below is, inter, alia, what he said: “A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it. …It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid – whether it was regular or irregular….As long as it existed, it must not be disobeyed”. This view was re-echoed by Romer L.J in HADKINSON v HADKINSON (supra) where he observed: “It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation, is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular, or even void and affirmed by the Privy Council in ISAACS v Robertson (Supra), Eso, JSC stated the same view in OBA ALADEGBEMI v OBA FASANMADE (Supra) where he observed: “… for a court of competent jurisdiction, not necessarily of unlimited jurisdiction, has jurisdiction to decide a matter rightly or wrongly. If that court never had jurisdiction in the matter, then its decision is, without jurisdiction, void, but then should a court of law not even decide the point? That is, the court without jurisdiction decide without jurisdiction? Should the decision be ignored? Surely, it would not make for peace and finality, which a decision of a court seeks to attain. It would, at least, be against public policy for persons, without the backing of the Court, to pronounce a court decision a nullity, act in breach of the decision, whereas others may set out to obey it. In my respectful view it is not only desirable, but necessary to have such decisions set aside first by another court, before any act is built upon it despite the colourful dictum of the law Lord in U.A.C. v MACFOY (Supra).” Generally, therefore, orders of a competent court must be obeyed as long as they subsist, if the authority and administration of the court are not to be brought into disrepute, scorn or disrespect. They remain binding on parties thereto until set aside by a superior court of competent jurisdiction, or declared null and void. Thus, once a party knows of the subsistence of an order of court, whether valid or not and whether regular or irregular or even perverse, he is obliged to obey it. See ADEBAYO v JOHNSON (1969) 1 ALL NLR 176; ALADEGBEMI v FASANMADE (1988) 3 NWLR (PT.81) 129; KOMOLAFE v OMOLE (1993) 1 NWLR (PT.268) 213; ROSSEK v AFRICAN CONTINENTAL BANK LTD. (Supra). See also the dictum of MUHAMMAD, J.S.C ( Pp. 23-27, paras. E-C ) in OSHIOMHOLE & ANOR v FGN & ANOR (2004) LPELR-5188(CA).
Accordingly, if the security agents’ involvement doesn’t go beyond executing the search warrant strictly as issued by the Magistrate, they’re hardly to blame for any wrongdoing. We all have been shouting rule of law, obey court orders. Now, I respectfully submit again that, if all the Police officers had done was to merely obey a subsisting order of a competent court of law, then they can hardly be said to have done much wrong, provided they had carried out the order (warrant) strictly in line with the stipulations on the warrant. However, the answer to my first question would be item Number 4 on the above list, if the Police Officers are found to have failed to religiously follow the order made by the Magistrate.
For example, there is this earlier report that the Police officers had, during the execution, left the house address mentioned in the search warrant and went to a different house address, this time the house of Hon, Justice Mary Peter-Odili. As aptly captured by Learned Silk Silk, Malik, “the Magistrate’s order did not target Justice Odili’s residence. The warrant was against No. 9 Imo Street (Close), Maitama, whereas the Police officers upon obtaining the order made a detour and diverted to Justice Odili’s residence at No. 9 Imo River Street, Maitama. There is a world of difference, between the two addresses”. If this detour version is true, then the Police officers are to some extent, that’s, partly, blameful. But, a larger part of the blame still goes to both the Lawyers who had procured that strange, bizarre order, and to the Magistrate who had granted the order, notwithstanding the obvious deficiencies, absurdities, fraud and illegalities seen in the processes placed before the Magistrate.
The search warrant should never have been issued, in the first instance. And, I submit that if the Lawyers and the Magistrate did not breach their respective professional duties, and (in the case of the Magistrate) judicial duties, the blunder said to have been committed by the Police officers during the execution, wouldn’t arise. Indeed, many take the view that the absurdities on the face of the Search Warrant had aided and facilitated the confusion that led to the apparent misjudgement or errors committed by the executing Police officers. These absurdities on the Search Warrant, I have already discussed above, that is, not in the present commentary but in my first comment on this incident.
Lawyers Involved in Procuring the Order
They are heavily culpable for misleading the court, and for gross violation of Rule 15, RPC 2007. Rule 15 provides that, in his representation of a client, a Lawyer (whether he is a Police officer or not) must do or refrain from doing the following:
(a) must not aid or participate in conduct that he believes to be unlawful;
(b) to keep strictly within the law, notwithstanding any contrary instruction by his client and, if the client insists on a breach of the law, the Lawyer shall withdraw his service;
(c) use his best endeavours to restrain and prevent his client from committing misconduct or breach of the law with particular reference to judicial officers, witnesses and litigants, and if the client persists in his action or conduct, the Lawyer shall terminate their relations;
(d) must not give service or advice to the client which he knows or ought reasonably to know is capable of causing disloyalty to, or breach of, the law, or bringing disrespect to the holder of a judicial office;
(e) must not file a suit, assert a position, conduct a defence, delay a trial, or take over action on behalf of his client, when he knows or ought reasonably to know that such action would serve merely to harass or maliciously injure another;
(f) must not knowingly advance a claim or defence that is unwarranted under existing law;
(g) must not conceal or knowingly fail to disclose that which he is required by law to reveal;
(h) must not knowingly make a false statement of law;
(i) must not participate in the creation or preservation of evidence, when he knows or ought reasonably to know that the evidence is false;
(j) must not counsel or assist his client in conduct that the Lawyer knows to be illegal or fraudulent; or
(k) must not knowingly engage in other illegal conduct, or conduct contrary to any of the rules.
(l) Where in the course of his representation of his client a Lawyer receives clearly established information that the client has perpetrated a fraud upon a person or tribunal, he shall promptly call on his client to rectify it, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal, except when the information is a privileged communication; and if the person who perpetrated the fraud is not his client, the Lawyer shall promptly reveal the fraud to the tribunal.
Rule 1(1) RPC 2007 provides that a Lawyer shall uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct, and shall not engage in any conduct which is unbecoming of a legal practitioner.
The Presiding Magistrate
The Magistrate’s misconduct is glaring even to the blind, with due respect to his Worship. His misconduct is twofold:
(a) He ought to be made to face the Legal Practitioners Disciplinary Committee (LPDC) in his/her capacity as a Lawyer whose name is on the Roll. See Section 11 and 12 LPA Cap L11 LFN 2004; and
(b) He ought to be made to face disciplinary measures by the relevant disciplinary authorities for Magistrates – including the Judicial Service Committee of the Federal Capital Territory, Abuja; See Part 3 (2)(c) of the 2nd Schedule to the Constitution of the Federal Republic of Nigeria, 1999 which provides that “The Committee shall have power – (c) to appoint, promote and exercise disciplinary control over the Chief Registrar and Deputy Chief Registrars of the High Court, the Sharia Court of Appeal and the Customary Court of Appeal of the Federal Capital Territory, Abuja, Magistrates, the Judges and members of the District and Area Courts of the Federal Capital Territory, Abuja, if any, and all other members of the staff of the judicial service of the Federal Capital Territory, Abuja not otherwise specified in this Constitution and of the Judicial Service Committee of the Federal Capital Territory, Abuja”.
I have already set out, above (although I will repeat them in Part 2 of the present piece), the particulars of the professional and judicial misconduct, perpetrated by the said Presiding Magistrate.
Conclusion
Please, let’s apportion blame appropriately. Subject to my provisos above, I do not see how a Police officer who merely executed an order issued by a competent court of law, could be arrested for committing an offence. Even the semblance between “No. 9, Imo Street (Close), Maitama, Abuja” and “No. 9, Imo River Street, Maitama, Abuja” is so obvious to an ordinary mind that such could have reasonably confused, and therefore, misled unsuspecting Police officers, especially considering the gross low level of formal education of many a Police officer in Nigeria, today. I therefore, suggest that we channel our blame appropriately.
I support the call by inimitable DLS, Femi Falana, SAN to fish out and discipline, for gross professional misconduct, all Lawyers involved in procuring the ill-fated Search Warrant. These Lawyers, whoever they are, in addition to the chief/principal offender, the presiding Magistrate, are the real culprits who must be professionally disciplined, to serve as a deterrent others. Impunity in high places, persists because no example has been set of anyone. Meanwhile, the level of culpability of the executing police officers, in my opinion, is too low, compared to the grave, atrocious and abominable assault unleashed against the distinguished Number 2 Justice in the Country, and by extension against the institution of the judiciary, by the combined unprofessional actions of lawyers and the presiding Magistrate who are themselves members of the law profession in Nigeria. The institution of the judiciary, the temple of justice, is too sacred to be desecrated in such a brazen and unashamed manner by people who should have known better.
Sylvester Udemezue, Senior Lecturer, Nigerian Law School
