A federal judge has criticized the State Security Service, SSS, for arresting and detaining five staff of the All Progressives Congress, APC, in a raid Saturday, November 22.

Justice Mohammed Yunusa of a Federal High Court, Lagos, on Monday freed the five staff, saying they were detained without justification.

“The arrest and detention of a person for the purpose of obtaining information is clearly a violation of Section 35 of the Constitution,” the judge said. “It is clear that there is a contravention of Section 35 and the applicants were not properly brought before a competent court of jurisdiction.”

Chinedu Atuche, Fayemi Olaposi, Augustine Onuchukwu, Ebun Ilori, and Esther Enemuwe were arrested on November 22 after SSS operatives, accompanied by police officers, raided a building which the APC said was its data office at Allen Avenue, Lagos.

The SSS accused the staff of “unwholesome activities”.

In his ruling, Judge Yunusa said the detention of the applicants for more than a week without charging them to court was “not justifiable.”

Noting that the matter was not a criminal trial, the judge restrained the SSS from further arrests of the applicants pending the determination of the substantive suit.

He also ordered the applicants not to travel outside the country without informing the court.

The judge adjourned till 19th January, 2015, for hearing of the substantive suit.

The applicants – three males and two females – were brought to court on Monday in an unmarked Toyota Hiace bus accompanied by a patrol van with armed SSS operatives.

Looking exhausted and disheveled, they stood in the aisle of the tiny, crowded court room while proceedings lasted.

After the judge finished reading out his ruling, they smiled before filing out of the court room, back into the SSS van.

Last Wednesday, Mr. Yunusa had ordered the SSS and the Nigerian police to produce the detainees in court on Friday.

But the agency failed to produce the detained staff on Friday, their lawyer claiming that they were unaware of the court’s order.

Just like last Friday, there was no legal representation for the Nigerian Police on Monday.

Clifford Osagie, counsel to the SSS, said the agency was unable to produce the applicants last Friday because they received the court’s order late on Thursday.

“The DG (Director General) of the second respondent (the SSS) was notified on Friday and he directed compliance immediately.

“We have also filed processes in response to the application before this court.”

Yemi Osibajo, counsel to the APC, said he received the SSS’ application on Monday morning.

“Our application at this point is that in the light of the Constitutional provision especially Section 35 guarantees the personal liberty of these Nigerian citizens who by the way have been in detention since November 22nd,” said Mr. Osibajo, a former Attorney General of Lagos State and a Senior Advocate of Nigeria.

“They have not been allowed access to any member of their family. There is no criminal charge, even if there were, it does not in any way offer a basis for the detention of these individuals without any kind of charge.

“The continued violation of their rights should not be allowed to continue.”

While acknowledging the constitutional right to liberty, Mr. Osagie noted that the Constitution is not absolute especially when it comes to matters of criminality.

Mr. Osagie said the SSS obtained a remand warrant for the applicants to be kept in detention pending the conclusion of their investigation into allegations of forgery and electoral offences.

“Their release will compromise the investigation that is ongoing, particularly that some of the applicants are at large.

“This court is enjoined to enable the second respondent perform its statutory duty. These are very trying times.”

Mr. Osagie also denied that the applicants were denied access to their families, noting that they were flown into Lagos from Abuja to attend the proceedings.

A “perverted remand order”

In his argument, Mr. Osibajo questioned the legality of the remand warrant used by the SSS for the arrest of the applicants.

“It is incredible indeed that counsel will say there is a remand order. This perverted remand order is from a magistrate court somewhere in Kaduna. For an offence allegedly committed in Lagos,” said Mr. Osibajo.

“If there is to be a remand, it has to be a court that has jurisdiction. That is the law.

“Clearly, there is no basis for this purported remand order,” he said.

Mr. Osibajo also said it was unlawful for the SSS to have arrested the APC staff without sufficient evidence.

“You cannot detain a Nigerian citizen pending investigation.

“This remand order which does not even bear the name of the particular court was on the 24th of November. This arrest was on the 22nd of November. It even means that the applicants were detained illegally for two days.

“This document purporting to be a remand order, aside from the fact that we don’t even know the court, it bears the stamp of the SSS, I don’t know the reason that.

“The fourth and fifth respondents reported at the SSS office and they were arrested and detained.”

Mr. Osajie, however, argued that even where a court lacked jurisdiction to issue a warrant, it had a duty to remand suspects.

The applicants had filed an action before the court last Wednesday seeking an enforcement of their fundamental rights.

The SSS had justified its action by claiming that their raid was based on a petition it received alleging “unwholesome activities” inside the building at the location.

“Based on this information, the service placed the building under surveillance and having been convinced that some unwholesome activities were going on in the building, it undertook a raid of the premises,” the SSS said in a statement penultimate Sunday.

In addition to the arrested staff, documents and computer hard drives were also confiscated by the operatives.

But last Wednesday, Mr. Yunusa granted the applicants’ requests by ordering that the detained staff be produced before the court.

The judge also ordered the SSS to unseal the building where the arrest took place. He also granted an interim injunction restraining them from further shutting the building or taking any step in connection with the property pending the determination of the substantive suit.