A Federal High Court in Abuja has declared that the office Attorney General of the Federation (AGF) and Minister of Justice lacks the power to initiate criminal proceedings against anyone or prosecute such a person for election related offences.

The court said such practice was not only unlawful; it offended relevant provisions of the Constitution and the Electoral Act, adding that it is only the Independent National Electoral Commission (INEC) that is empowered to prosecute electoral offences.

Justice Inyang Ekwo made the declaration on Monday in a judgment on a suit marked: FHC/ABJ/CS/1038/2023 filed by the governorship candidate of the Peoples Democratic Party (PDP) in Ogun State during the 2023 elections, Oladipupo Adebutu and nine others.

The others are: Ogunbona Hameed, Tiamiyu Waliu, Egunsola Owolabi, Sanni Adegoke, Hon. Dare Ogunleye, Hon. Dare Adeoye, Dayo Fashina, Wasiu Enilobo and Malik Akawo.

The AGF is listed as the sole defendant.

The plaintiffs had claimed that the prosecution before a HIgh Court of Ogun State by the office of the AGF on allegation of vote buying during the last governorship election was an attempt to intimate them since Adebutu chose to challenge the outcome of the poll.

They stated that while the issue of vote buying and related electoral malpractices were pending before the election tribunal, the office the AGF decided to charge them before the Ogun State High Court on the same allegation of vote buying.

The plaintiffs further stated in their supporting affidavit that shortly after he went before the election tribunal, Dapo Abiodun (the incumbent governor of Ogun State) and the All Progressives Congress (APC), through the Ogun State APC chairman, Yemi Sanusi allegedly petitioned to the AGF.

They added that, in the petition accused Adebutu of vote buying during the governorship election and called for his investigation.

The plaintiffs stated that “the defendant (the AGF), through the Director of Prosecution wrote to the police asking them to investigate the petition of Yemi Sanusi which culminated in the Deputy Commissioner (Operations), Ogun State Police Command, DCP Mohammed Babakura inviting the 1st plaintiff (Adebutu) to report to his office on 2nd May, 2023 

“The defendant started piling pressure on the lolice to send him report of the investigation even when they informed the defendant that interview on the 1st plaintiff has mot been concluded. 

“The pressure made the police to send an interim report to the defendant and without the 1st plaintiff’s to return from his vacation, or without interviewing or hearing from the 1st plaintiff. 

“The defendant used the interim report of an investigation which has not been completed to file a charge against the plaintiffs and arraigned them before the Ogun State High Court, Abeokuta division. 

“The charge is alleging the offence of vote buying against the plaintiffs during the governorship election when they were never arrested and, neither did INEC write to the police to investigate any vote buying against the 1st plaintiff. 

“Dapo Abiodun and APC had, in their response to the 1st plaintiff’s election petition, alleged that he engaged in vote buying during the governorship election in Ogun State.

“The alleged vote buying is pending before the Governorship Election Tribunal and has not been determined before the defendant filed a criminal charge merely aimed at pressuring the 1st llaintiff to abandon his election petition.”

In his judgment on Monday, Justice Ekwo noted that the defendant failed to challenge the plaintiffs’ averments as contained in their supporting affidavit.

The judge added: “Now, having not challenged nor controverted the averments of the plaintiffs, it can be deemed that the defendant has admitted same.

“Going by the provision of Section 144 of the Electoral Act, it is INEC that has the power to consider any recommendation made to it by a tribunal with respect to the prosecution by it of any person for an offence disclosed in any election petition. 

“By the facts of this case, the alleged vote buying is pending 

the Governorship Election Tribunal and has not been determined before the defendant filed a criminal charge. 

“By law, It is for the tribunal to make recommendation to INEC with respect to the prosecution by it of any person for an offence disclosed in any election petition. 

“The defendant (AGF) is not mentioned in the provision as having any business in the issue of vote buying or the prosecution of the allegation thereof. 

“This means the prosecution of the plaintiffs by the defendant on the allegation of vote buying when the matter was still pending before the tribunal was sub-judice, premature and devoid of statutory authority. It was void ab /nitio. 

“Again, by the provision of Section 145 (2) of the Electoral Act, 2022, a prosecution under the Act shall be undertaken by legal officers of the INEC or any legal practitioner appointed by it. This is a very lucid provision in my opinion,” Justice Ekwo said.

The judge held that the decision by the AGF to seek to prosecute the plaintiffs in a manner not prescribed by extant law is ultra vires.

He added that by doing so, the AGF usurped the power and function of both the election tribunal and INEC, adding that the court owes the law a duty to preserve and protect the sanctity of these bodies. 

Justice Ekwo noted that the averment of the plaintiffs that the AGF, who is prosecuting them, is a member, chieftain and political appointee of the ruling of APC, goes to the root of the complaint of the plaintiffs. 

He added: “It is compelling evidence that easily leads to a conclusion that the defendant has not exercised his power to prosecute in this case (assuming he has such powers) with regard to public interest, the interest of justice and the need to prevent abuse of legal process. 

“I find that the plaintiffs have established their case as required by law and are entitled to justice according to law. 

“On the other hand, the defendant has failed to established that his action was in accordance with the provision of sections 144 and 145 (2) of the Electoral Act, 2022 or that he acted with regard to public interest, the interest of justice and the need to prevent abuse of legal process as provided in Section 174 (3) of the 1999 Constitution (as amended),” he said.

Justice Ekwo then proceeded to grant the following reliefs:

*A declaration that the office of the Attorney General of the Federation and Minister of Justice lacks the power and authority to initiate, prosecute and maintain the prosecution of offences created by and under the Electoral Act, 2022 in view of sections 153, 158, 160, and Paragraph 15, Part 1, Third Schedule of the 1999 Constitution (as amended) and sections 133, 144, and 145(2) of the Electoral Act, 2022. 

*A declaration that the initiation, commencement, and prosecution of electoral offences under the Electoral Act, 2022 by the office of the Attorney General of the Federation and Minister of Justice is a violation of sections 153, 158, 160, and Paragraph 15, Part 1, Third Schedule of the Constitution of the Federal Republic of Nigeria, 1999 as amended and sections 133, 144, and 145 (2) of the Electoral Act, 2022 and the independence of INEC. 

*A declaration that it is only the Independent National Electoral Commission (INEC) who can initiate and maintain criminal proceedings for offences created under the provisions of the Electoral Act, 2022. 

*A declaration that it is outside the power of the defendant, its men, agents, and persons howsoever named, designated, and described to initiate, commence, arraign, maintain, and continue the prosecution of the plaintiffs for alleged electoral offences at and before the Ogun State High Court in charge No AB/10c/2023.