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Court dismisses application against MTN electoral conduct

02 July 2014, 17:27Henry Ifeanyi

Lagos - Justice Adeniyi Ademola of the Abuja Federal High Court has dismissed an application seeking to compel the Attorney General of the Federation to prosecute MTN Nigeria for allegedly suppressing evidence in an election petition case.

The judge ruled that the suit filed by former governor of Osun State, Olagunsoye Oyinlola, lacked merit as the Attorney General had discretion over who to prosecute or not on any allegation.

Oyinlola had instituted the suit following the refusal of the MTN to furnish the National Judicial Council with a complete call logs of the retired President of the Court of Appeal, Justice Ayo Salami.

Salami’s call log had become an issue following a petition to the NJC that he had communicated on many occasions with some leaders of the now-defunct Action Congress of Nigeria while handling the Osun State governorship election dispute at the appeal tribunal.

The judge in his ruling however maintained  that it lied in the discretion of the AGF, under Section 174 of the 1999 Constitution to initiate public prosecution.

Although the judge agreed with Oyinlola that Section 174 of the 1999 Constitution provided for the granting of order of mandamus against a public officer, it also provided the attorney general with the discretion to initiate public prosecution.

He 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 had discretion to perform.

He further held that, as against the contention by the applicant (Oyinlola), Section 174 preserved the discretion of the Attorney General.

The judge further held that granting the order of mandamus, under Section 174 of the Constitution, was discretionary in nature, and that the court had the discretion to grant or refuse it.

He added that if the Attorney General abused his position, he could only be checked through public opinion or re-assigned to other offices or be removed from office by the President, who is the appointer.

“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," said Ademola.

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, he said.

"Accordingly, order of mandamus cannot be issued against the first respondent. The application fails and it is hereby dismissed,” the judge ruled.

- CAJ News

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