By Emmanuel Onwubiko
Nigeria is an interesting paradox. The moment a public office holder spends little or practically nothing to burnish his public image even when he is as clean as a white dove, usually he/she becomes the subject of intense media attack, not by media professionals themselves but forces that understand the enormous influence that the print and electronic media wield.
I am commenting in the context of the raging debate over the decision of erstwhile governor of Osu state, Olagunsoye Oyinlola, to drag the federal attorney general and minister of justice, Mohammed Bello Adoke, to the Federal High Court, seeking to a mandamus compelling the latter to prosecute the telecommunication service provider- MTN – for alleged concealment of evidence that would have nailed the erstwhile President of the Court of Appeal Justice; Justice Ayo Salam on a charge that he corruptly influenced decision of an election appeal tribunal.
Specifically, Oyinlola alleging that the nation’s chief law officer was wrong n law not to have proceeded to prosecute the telecom giant MTN for not reportedly providing the National Judicial Council with the relevant information against the suspended but now retired President of the Court of Appeal had also made allegations to the effect that the minister of justice had personal interest in the South African owned telecommunication firm [MTN] and that it was this hidden interest that made him to shield MTN from public prosecution and that the nation’s chief law officer misused and misapplied his powers of nolle prose qui in not instituting the case against the telecommunication firm.
In a judgement, Justice Adeniyi Ademola held that although Section 174 of the Constitution provides from the granting of order of mandamus against a public officer to compel him/her to perform his public responsibility, the section equally provided the Attorney General with the discretion to initiate public prosecution.
The judge held that granting order of mandamus under Section 174 of the Constitution, which Oyinlola relied on in his application, is discretionary in nature, and that the court has the discretion to grant or refuse it. He further held that for order of mandamus to be issued on a public officer, there must exist a public duty and not one in which they have discretion to perform, and that it must be a duty that such public officer must perform, but which he refused to perform, which does not include a duty to institute public prosecution.
Justice Ademola held that Section 174 grants the 1st respondent discretionary powers and not duties to initiate public prosecution. He further held that, as against the contention by the applicant (Oyinlola), Section 174 preserves the discretion of the AGF: “The 1st respondent (AGF) in exercising his discretion under Section 174 of the Constitution cannot be questioned by anyone, not even the person of the President of the Federal Republic of Nigeria”.
On plaintiff’s argument that the AGF appointed a political appointee, in the person of Simon Egede, as an acting Director of Public Prosecution (DPP), the judge held that , if the court was to vitiate the letters written by Egede, on the ground that he was not qualified to act in that capacity, “it then means the applicant’s application for order of mandamus will have no leg to stand on, because it would have become statute barred and would have been liable to be dismissed in line with the provision of Order 34 Rule 4 of the court’s Civil Procedure Rules 2009.”
On the plaintiff’s argument that the AGF could even direct the Police to prosecute the 2nddefendant (MTN), the judge held that, even if the Police take it upon itself to prosecute MTN, the 1st respondent has the powers, under Section 174 to discontinue such action, powers which the police do not have
In what I consider the most telling evidence of the triumph of justice over mundane politics, the presiding Federal High Court Judge averred thus; “Having taken into consideration the public interest, interest of justice and the right of the AGF to prevent the abuse of legal process and that in the exercise of his powers under Section 174 of the Constitution, the 1st respondent has discretion; accordingly, order of mandamus cannot be issued against the 1st respondent. The application fails and it is hereby dismissed.”
Interestingly, several hours after he scored this major legal milestone, the Federal Attorney and Minister of Justice as not considered it imperative to begin widespread media celebration but still maintains his sobriety and candour by not even issuing a press statement from the office of his press secretary. Such is the attribute of a great man who believes in giving his best to his society and to await the judgement of posterity to acclaim of appraise him appropriately. This article is written in public interest and to put the records straight.
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