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A Federal High Court yesterday ruled that the Attorney General of the Federation and Minister for Justice cannot be compelled to prosecute MTN Communications Nigeria Limited for alleged suppression of evidence.
A former Governor of Osun State, Olagunsoye Oyinlola, had filed the suit for an order of mandamus to compel the AGF to prosecute MTN for withholding the calls log between leaders of the defunct Action Congress of Nigeria (ACN) and retired president of the Court of Appeal, Justice Ayo Salami.
Although, MTN produced calls log for three months, Oyinlola claimed that the communication firm ought to have submitted a calls log for one year as mandated by the Nigerian Communications Commission (NCC).
The former governor consequently applied to the court for a judicial review to compel the minister to initiate criminal prosecution against MTN for allegedly suppressing evidence.
But in a judgment yesterday, Justice Adeniyi Ademola held that although Section 174 of the Constitution provided for 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, was discretionary in nature, and that the court had 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 the officer had a discretion to perform, and that it must be a duty that such public officer must perform, but which he refused to perform, which did not include a duty to institute public prosecution.
Justice Ademola held that Section 174 granted the 1st respondent (AGF) discretionary powers and not duty to initiate public prosecution.
He further held that, as against the contention by the applicant (Oyinlola), Section 174 preserved the discretion of the AGF.
The judge said: “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.”
He added that if the AGF abused his position, he could only be checked through public opinion or reassigned to other offices or removed from office by the president, who appointed him.
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 grounds 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.”
Justice Ademola held that having earlier held that the cause of action in the suit arose in October/November 2013 on the basis of the documents authored by Egede, tendered by the applicants, “if the letters by Egede is vitiated, the applicant’s application would have been caught by the Limitation Law under Order 34 Rule 4 of the court’s Rules.
“In conclusion, this court cannot issue an order of mandamus to compel the 1st defendant to initiate prosecution against the 2nddefendant for alleged attempt to suppress evidence,” the judge held.
On the plaintiff’s argument that the AGF could even direct the police to prosecute the 2nd defendant (MTN), the judge held that, even if the police take it upon themselves to prosecute MTN, the 1st respondent had the powers, under Section 174 to discontinue such action.
“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,” the judge held.
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