Posted by Emmanuel Onwubiko | 16 July 2014 | 3,325 times
Nigeria is an interesting paradox. The moment a public office holder spends little or practically nothing to burnish or embellish his public image, even when he is as clean as a white dove, usually he/she becomes the subject of intense media attacks, not necessarily from the media workers but from a range of forces who, indeed, truly understand the enormous powers and influence that the print and electronic media wield in contemporary societies.
Image is considered as the most important attribute that shapes a brand, but when a public officer is pilloried and sullied unduly and unjustly, just for failing to play ‘game’, those who have no pecuniary interest but who truly are determined to play the role of media purists are obliged, in the most sacred of ways, to intervene, no matter how controversial their individual interventions may become. Section 22 of the Constitution of the Federal Republic of Nigeria 1999 [as amended], charges every right thinking media commentator with the obligation of pointing out what is rationally and morally correct since the media, as the fourth estate of the realm, plays the constitutional role of the conscience of the nation.
It was in this frame of mind that yours truly decided to contribute my own quota in the raging debate that trailed the decision of the former Governor of Osun State, Col. Olagunsoye Oyinlola, to drag the Federal Attorney General and Minister of Justice to the Federal High Court, seeking to obtain a mandamus compelling the attorney general to prosecute the telecommunication service provider, MTN, for alleged concealment of evidence that would have nailed the erstwhile president of the Federal Court of Appeal, Justice Ayo Salami, over allegation that he corruptly influenced decision of the then election appeal tribunal that nullified the occupation of the high office of Governor of Osun State by the retired military officer, Col Olagunsoye Oyinlola. I did not even step into the legal arena of the issues for determination by the judiciary but rather based my media intervention on the false charge against the person of the Attorney-General of the Federation by some busy-body interlopers, who called him names just for doing what he considered to be the best interest of public good in this instant case.
Specifically, ex-governor Oyinlola who instituted a case in the court alleging that the nation's Chief Law Officer was wrong in 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 Federal Court of Appeal, had also made allegations to the effect that the holder of the nation’s Minister of Justice and Attorney-General, the Kogi State-born Alhaji Mohammed Bello Adoke (SAN), had personal interest in the South African-owned (MTN), and that it was this hidden interest that made him to shield the telecom company from public prosecution, and that the nation's Chief Law Officer misused and misapplied his powers of nolle prosequi in not instituting the case against the telecommunication firm.
When I waded into the matter by way of penning down and publishing some articles to defend the integrity and good name of Mohammed Bello Adoke, who also holds one of the highest national honours which he won on merit – Commander of the Order of the Niger (CON) based on my objective and balanced knowledge of the man, the political camp of the former governor of Osun State who is understandably embittered that he lost out through the election appeal tribunal, did not take my intervention lightly. But some persons masquerading as civil society leaders attacked me and called me unprintable names, but I chose to ignore the ranting of these persons, believing that time is the greatest determinant of what is right or wrong. Forty-eight hours ago, the Federal High Court in Abuja has returned a favourable verdict to the attorney-general supporting his constitutional decision not to initiate the judicial proceedings against the MTN.
In that vein, the erstwhile governor lost in his bid to have a private telecommunication service provider – MTN – prosecuted for allegedly suppressing evidence as a Federal High Court in Abuja dismissed his suit.
As most national newspapers reported in their news pages, Col. Oyinlola had last year filed an application for judicial review for an order of mandamus to compel the Minister of Justice and Attorney-General of the Federation, Mohammed Adoke (SAN) to initiate criminal prosecution against MTN for allegedly suppressing evidence.
In a considered judgment, 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 first 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 first 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, the judge held. He added that if the AGF abuses his position, he could only be checked through public opinion or reassigned to other offices or removed from office by the President, who is the appointer.
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.”
Justice Ademola, in the said news report, was stated to have 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 first defendant to initiate prosecution against the second defendant 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 second defendant (MTN), the judge held that, even if the Police take it upon itself to prosecute MTN, the first respondent has the powers, under Section 174 to discontinue such action, powers which the police do not have.
In what I may consider the most telling evidence of the triumph of justice over mundane politics, the presiding Federal High Court Judge averred: “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 first respondent has discretion. Accordingly, order of mandamus cannot be issued against the first respondent. The application fails and it is hereby dismissed.”
Interestingly, several hours after he scored this major legal milestone, the attorney-general and minister of justice has 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 judgment of posterity to acclaim or appraise him appropriately.
This article is written in public interest and to put the records straight.
•RIGHTSVIEW appears twice a week on Wednesday and Saturdays, in addition to special appearances. The Columnist, popular activist Emmanuel Onwubiko, is a former Federal Commissioner of Nigeria’s National Human Rights Commission and presently National Coordinator of Human Rights Writers’ Association of Nigeria (HURIWA).
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