The Federal High Court in Abuja on Monday declared that the Attorney-General of the Federation and Minister of Justice lacked the power and authority to initiate, maintain, and prosecute offences under the Electoral Act, 2022.
Justice Inyang Ekwo held that only the Independent National Electoral Commission could initiate and maintain such criminal proceedings.
The News Agency of Nigeria reports that the judgement was delivered in a suit filed by Oladipupo Adebutu, the 2023 Ogun State governorship candidate of the Peoples Democratic Party, and nine others.
The plaintiffs in the suit, marked: FHC/ABJ/CS/1038/23, sued the AGF and Minister of Justice as sole defendant.
The plaintiffs had in their originating summons prayed the court to stop the office of the AGF from prosecuting them over an allegation of vote-buying levelled against them by Governor Dapo Abiodun of Ogun State and All Progressives Congress.
They prayed the court to hold that the AGF cannot initiate, commence, and continue the prosecution of electoral offences under the provisions of the Electoral Act, 2022 in view of Sections 153, 158, 160, and Paragraph 15, Part 1, 3rd Schedule of the Constitution.
They asked the court to determine whether the prosecution of electoral offences under the Electoral Act, 2022 was not the exclusive reserve of INEC in line with Section 145(2) of the Electoral Act and Sections 153, 158, 160, and Paragraph 15, Part 1, 3rd Schedule of the Constitution.
Justice Ekwo, in his judgment, agreed with the plaintiffs that only INEC could initiate and maintain criminal proceedings for offences under the Electoral Act, 2022.
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The judge further held that the initiation, commencement, and prosecution of electoral offences under the Electoral Act, 2022 by the office of the AGF and Minister of Justice was a violation of Sections 153, 158, 160, and Paragraph 15, Part 1, 3rd Schedule of the Constitution and Sections 144 and 145(2) of the Electoral Act and the Independence of INEC.
He said the action of the defendant by exercising the power to prosecute the plaintiffs in a manner not in accordance with the law was ultra vires.
According to him, the power of the AGF to take over any proceedings can be challenged if the exercise of the power is not in accordance with the law.
The court, however, did not grant some of the prayers of the plaintiffs, saying that would amount to tampering with the decisions of courts of coordinate jurisdiction.
Ekwo held that the plaintiff had established his case according to the law and was entitled to justice.
The plaintiffs in their suit prayed the court to determine “whether since the facts which formed the fulcrum of charge No. AB/10c/2023 are also the facts which formed the defence and response/allegations of Dapo Abiodun and the APC at the Ogun State Governorship Election Petition Tribunal, the filing of the charge was not subjudice and an abuse of court processes capable of overreaching the tribunal.
“Whether the initiation of criminal prosecution against the plaintiffs, who are PDP members by the AGF, who is a member of the APC in respect of the dispute which emanated from the March 18, 2023 governorship election in Ogun state is not an abuse of power, illegal, invalid and void.”
The plaintiffs prayed the court to declare that it was out of the power of the AGF to arraign, maintain and continue their prosecution for alleged electoral offences before the Ogun State High Court in charge number: AB/10c/2023.
They sought an order of perpetual injunction restraining the AGF from arraigning and continuing their prosecution for alleged offences created under the Electoral Act in charge before the Ogun High Court.
An affidavit in support of the plaintiffs’ originating summons averred that Abiodun and the APC, through the Ogun State APC chairman, Yemi Sanusi, wrote a frivolous and baseless petition to the AGF, accusing the first plaintiff (Adebutu) of vote buying during the governorship election.
It said that the APC therefore called for his (Adebutu’s) investigation after he had filed his election petition before the tribunal.
It said the AGF, through the Director of Public Prosecution, wrote to the police asking them to investigate the petition of Sanusi, which culminated in the police inviting the first plaintiff to report at their office on May 2, 2023.
The affidavit averred that the AGF used an interim report of an investigation, which had not been completed, to file a charge against the plaintiffs and arraigned them before the Ogun State High Court, Abeokuta Division.
The affidavit said that the charge alleged the offence of vote buying against the plaintiffs during the state governorship election, even when INEC never wrote to the police to investigate any vote buying allegation against the first plaintiff.
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