Daily Independent (Lagos)
2 July 2009
opinion
Lagos — By virtue of Section 174 (1) (2) (3) of the 1999 Constitution, there is no contention on whether the Attorney General of the Federation (AGF) can exercise supervisory powers over other agencies of government exercising prosecutorial powers. The question however is whether such power is absolute or permits the AGF to disrespect, ignore a court order or instructs another agency of the government to disregard a court order. Benin - based litigation attorney, Robert Omote, believes the AGF veered off his legal bearing as he has no such power
A Court of Law is an established public forum for the fair and just resolution of disputes arising from disputes among various tiers of government, between government and private organisations, between government and citizens and most especially among individuals in society. However, litigants in their quest for justice may encounter some impediments that could be human in nature. Others could be procedural and mechanical in form. Suffice it to say that the human nature has inadvertently been manifested by some of the actions of the incumbent Attorney General of the Federation.
Tucked inside one of the thought provoking judicial reports of the April 20, 2009 edition of the Newswatch Magazine is the undue influence and a crude display of interventionism uncharacteristic of the office of the AGF.
According to the magazine, the bone of contention is between Emmanuel Obot and. Bassey Etim, two prominent PDP chieftains in respect of Uyo Federal Constituency seat at the National Assembly. The lower tribunal, which initially handled the election petition, gave judgment in favour of Obot. Etim, the respondent went upstairs on appeal. The Appeal Court, in a unanimous decision, dismissed Etim's appeal and confirmed an earlier ruling of the election tribunal, declaring null and void the certificate of return that was given to him. The Court also ordered that Obot should immediately be returned as the duly elected candidate of Uyo Federal Constituency in the election of April 28, 2007. It directed the Independent National Electoral Commission (INEC) to issue a certificate of return to Obot and that the House of Representatives should swear him in. These two orders of the Justices in their unanimous decision are quite instructive. But there were two ongoing noticeable actions that should not been ignored in our quest for social justice and operational rule of law. Basking in the euphoria of his connections with the kitchen cabinet of Mr. President and the brazen display of ignorance exhibited by his legal team, Etim, shortly after the Appeal Court ruling, filed an appeal at the Supreme Court challenging the ruling of the Court of Appeal. In Awuse V Odili (2004) FWLR (pt 193) 325 (2004) II SCNJ 88, the Supreme Court held that all Governorship and House of Assemblies election petitions terminate at the Appeal Court. In the same vein, S.246 (1) (b) & S.246 (3) of the 1999 constitution provide that the decisions of the Court of Appeal in respect of appeals arising from election petitions pertaining to validity of election of members of the National Assembly or of a House of Assembly of a state, Governor or Depute Governor shall be final. In a similar development, Dr. Olusegun Mimiko, having won his election petition at the Appeal Court sacked the Local Government Chairmen and their Councilors barely one week on assumption in office as the duly elected Governor of Ondo State. These sacked Council Chairmen were assisted by the Nigeria Police to resume duties soon after the pronouncement was made y the Governor. Piqued by the controversies generate & by this deftly order; the Governor went to the court to seek for legal backing of his action. A High Court sitting in Ondo tacitly gave judgment in his favour thus giving credence to his action.
The AGF as a Shield: SS.150 & 174 of the extant constitution deal with the office of the AGF. S. 174 (1) provides "The Attorney-General of the Federation shall have power:
(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court - martial, in respect of any offence created by or under any Act of the National Assembly;
(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person and,
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority of person."
It is trite that the AGF is a law unto himself in taking decisions on matters under S. 174 and S. 211 of the 1999 Constitution. He cannot be questioned nor his action reviewed (State V Ilori (1983) 2 SC. 155. This constitutional provision for the office of the AGF is nolle prosequie. Its effect, when effectively entered is a discharge of the accused person and not an acquittal. S. 73 (3) CPC, State v Ilori (1983) 2 SC (Supra); but the accused may be subsequently presented for the same offence. In exercising the power of Nolle, the AGF may be influenced by whatever reason, however frivolous. Consequently the Supreme Court held in The State v llori (Supra) that S. 191 (3) which provides that the AGF shall have regards to public interest, the interest of justice and the need to prevent abuse of legal process is merely declaratory and not directory. If the AGF therefore disregards the provision(s), the only sanction against him is removal by his appointor or adverse criticism by the public.
In Obot V Etim over who should represent Uyo Federal Constituency at the House of Representatives, the AGF wrote a letter to the Chairman of Independent National Electoral Commission, Professor Maurice Iwu, asking him to stay action on the ruling by the Appeal Court, which ordered that INEC should issue a certificate of return to Obot as the duly elected representative of Uyo Federal Constituency. According to the Newswatch Magazine, the letter was dated Feb. 16, 2009. The AGF, the magazine claimed, based his action on the fact that he had been served with a petition by the Law firm of Amobi Nzelu on behalf of Etim over a concluded matter and judgment given. Previously, the same AGF, acting surreptitiously, had on 18th January 2008 written to the President, Court of Appeal, prevailing on him not to constitute a fresh tribunal to try the case between Obot V Etim as was directed by the court.
The AGF is a law unto himself in taking decisions on matters under S. 174 and S. 211 of the 1999 Constitution. S. 174 (1) (c) avails him to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person. The legal battle between Obot and Etim bothers on election petitions. There is no section in the 1999 constitution that permits the AGF to disregard a court order or instruct another agency of the government such as INEC to blatantly disregard a court order. Those surreptitious letters, which originated from the AGF, are clear indications of how not to re-brand the legal process and amplify the taunted rule of law. Such letters tend to give credence to the clarion call for the resignation of AGF as the Chief Law Officer of the Nigerian State.
In another breadth, the AGF took a swipe at the conduct of the incumbent Ondo State Governor over the removal of Council Chairmen and their councilors. Overwhelmed by his emotional disgust for Dr. Mimiko's action, the AGF quipped "Mimiko is on his own". Michael Aondoaka perhaps sees himself as the Chief Law Officer of PDP, the- ruling party rather than that of the federation.
No doubt, the AGF veered off his legal bearing in Obot V Etim among others. And should the AGF, therefore, disregard constitutional provisions, the only sanction against him is removal by the President, who appointed him or adverse criticism by the public. As a key member of the kitchen cabinet, the Presidenct may not be disposed to his removal, but public levity daily awaits him pending when there is a new order. Before then, the AGF should appropriately channel his energy and zeal in ensuring that his primary constituency, the law becomes veritable instrument of social engineering in overhauling the body polity, rather than getting himself enmeshed in the murky waters of political disdain including disobedience to court orders and cynical comments overtly or covertly. Hopefully, I shall see him some day on the front roll to announce his appearance before his Lordships whose orders he has instructed INEC to disregard.
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