Abuse Of Prosecutorial Powers: Why Citizen Magu Should Face Criminal Trial

By Johnmary Chukwukasi Jideobi, Esq.

[I]t seems to me that conducting a prosecution in a manner that contravenes the community’s basic sense of decency and fair play and thereby calls into question the integrity of the system is also an affront of constitutional magnitude to the rights of the individual accused.

…R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411

PREFATORY REMARKS:

One of the hallmarks of the ignominious era of Ibrahim Magu at the Economic and Financial Crimes Commission (henceforth in this article, for economy of space, called the EFCC or the Commission) as its former ‘Acting Chairman’ is the institution of vexatious/oppressive criminal charges against individuals for settlement of scores, perpetuation of malice, organized vendetta, extreme wickedness, unjust persecution and such other ignoble motives than or far away from the attainment of public justice; deploying media trial  as a most effective instrument in arriving at such  despicable ends. Justice Wills of England in Rex v. Parke [1903] 2 K.B. 432 aptly described media trial as an instrument “to poison the fountain of justice before it begins to flow”, while Lord Hardwicke, in the 1742 case of Roach v. Garvan insisted that courts must punish publications that result in “prejudicing mankind against persons before the case is heard . . . ,” and that they must do so to “keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters.”

Institution of criminal proceedings against any entity is a grave decision on the part of those whose it lot it is to exercise the powers of the state in the field of criminal prosecution. The exercise of this power must therefore be with utmost sense of responsibility. This may well offer explanation why under the now defunct Section 340(2)(a), (b) of the Criminal Procedure Act [CPA for short], before a criminal charge is preferred against anybody, the consent of a Judge must be sought and obtained and where an information is preferred otherwise in circumvention of same, the information shall be liable to be quashed. Shedding light on the above now extinct provision of the CPA, Nnamani, J.S.C. [of the blessed memory], in Ikomi v. State (1986) 3 NWLR (Pt. 28) 340; (1986) LPELR-1482(SC), intoned thus:

“The courts have inherent jurisdiction to prevent abuse of their process. The judicial power which is conferred on the Courts is intended to be used in deciding issues in genuine cases or controversies. This powers of courts to prevent abuse of process includes the power to safeguard an accused person from oppression and prejudice such as would result if he is sent to trial pursuant to an information which discloses no offence with which he is in any way linked…

The gravity of filing a criminal charge is underscored by the insistence of the law to the effect that “If the Judge grants consent to prefer an information in the absence of such link such information is bound to be quashed…” Ikomi vs. The State (supra).

Earlier before Ikomi v. The State (supra) is the case of Atanda v. Attorney-General, Western Nigeria (1965) NMLR. 225 where the Supreme Court expressed the seasoned view that although a Judge has power under Section 340(2)(b) of the Criminal Procedure Act to consent to an information being preferred without a committal for trial, the power should be exercised with discretion. It further held that as the need for the consent is to prevent a vexatious prosecution or one that will serve no useful purpose, it is only when there is ‘a clear case’ on the deposition that the Judge gives his consent.

It needs be mentioned that, this principle of ensuring that oppressive criminal trials are not allowed a foothold on the sands of our criminal law jurisprudence has enjoyed consistent espousal by Courts of other jurisdictions, Connelly v. Director of Public Prosecutions (1964) A.C. 1254, 1301, 1302; (1964) 48 Cr. App. R. 168, 268269, 219, 280; R v. Riebold (1967) 1 WLR. 674 among others.

With the advent of the Administration of Criminal Justice Act, 2015 [ACJA for short henceforth in this article], the requirement of a Judge’s consent was abolished with the repeal of the CPA. But this does not in any way do away with the position of the law which remains that the prosecutor should not be allowed to set the criminal law in motion with intent to cause injury to a person or to falsely charge a person with having committed an offence knowing that there is no just or lawful ground for that proceeding or charge against that person. Indeed, it is to firmly confine a prosecutor to the spirit of the law in filing a criminal charge(s) that the law frowns on and clearly criminalises the institution of a criminal charge(s) to achieve purposes other than the ends of public justice by any prosecutor in Section 180 of the Penal Code Act which very lucidly provides as follows:

180. Whoever with intent to cause injury to a person institutes or cause to be instituted a criminal proceeding against that person or falsely charges a person with having committed an offence knowing that there is no just or lawful ground for that proceeding or charge against that person, shall be punished-

(a) with imprisonment for a term which may extend to two years or with fine or with both; and

(b) where such criminal proceeding is instituted on a false charge of an offence punishable with death or imprisonment for seven years or upwards, with imprisonment for a term which may extend to seven years or with fine or with both.

EXAMPLE OF PROSECUTORIAL ABUSE BY IBRAHIM MAGU:

We have been talking law all along. Now let us move to the facts. In 2016 and 2019 respectively, Ibrahim Magu directed the institution of criminal charge against one of the then frontline prosecutors for the EFCC, Chief Godwin Odumu Obla SAN in Charge No: LD/3671C/2016 and Charge No: FHC/L/139C/ 2019 between FRN v. HON JUSTICE RITA OFILI AJUMUOGOBIA AND GODWIN OBLA. The kernel of the charge was that Chief Godwin Obla, SAN purportedly bribed the Hon. Justice RITA OFILI AJUMUOGOBIA to secure conviction in favour of EFCC itself in Charge No: FHC/L/C/482C/10 between FRN v. Raymond Temisan Omatseye, where Chief Godwin Obla SAN acted as Prosecutor for the EFCC. In a more bizarre twist of events, the same EFCC, when the conviction of Raymond Temisan Omatseye was  challenged on appeal in Appeal No: CA/L/871/2016 between RAYMOND TEMISAN OMATSEYE V. FRN, vigorously defended the same judgment of the High Court which Ibrahim Magu alleged to have been ‘procured through bribery’ allegedly perpetrated by Chief Obla, SAN. What a contradiction, how absurd! It was this sort of devious ratiocination that impelled the Supreme Court [per Nweze, J.S.C.] to exclaim ‘Holy Moses!’ in Udom vs. Umana (2016) 12 NWLR (Pt. 1526) 179.

Mention must be made that prior to arraignment of Chief Obla, SAN, Ibrahim Magu ordered his ignominious detention between the 8^th of November, to 28^th of November, 2016 (21 days). As if that was not enough, while in detention, Ibrahim Magu unleashed media trial on Chief Obla, SAN releasing, verbatim, the statement he volunteered to the EFCC investigators alongside the same day of his arrest in a sensational manner with colouration of guilt even when trial was yet to commence. Worthy of mention is that these frivolous and vexatious charges pressed against the Learned Silk, was instituted and sustained by Mr. Rotimi Oyedepo who infamously supervised the unjust ordeals of the Learned Silk at the EFCC office, Lagos and in the courts. It was the bail granted Chief Obla, SAN on the 28^th November 2016 by the Hon. Justice O.H. Oshodi (following fundamental right enforcement action filed on his behalf) that ended his unjust and humiliating incarceration as supervised by Mr. Rotimi Oyedepo, Esq.

HOW DID THE CHARGES FARE IN COURT?

Following a preliminary objection, the Court delivered its Ruling on 16 April 2019 wherein the cruelty, vendetta, extreme wickedness and gross abuse of prosecutorial power of the EFCC by the duo of Ibrahim Magu and Mr. Rotimi Oyedepo were laid bare in this damning verdict of the Hon. Trial Judge:

“Before concluding, the Court will want to make one or two comments. As noted above, the Prosecution, as at Monday, 11th December 2017 was aware, as a result of the decision of the Court of Appeal in HON. JUSTICE HYELADZIRA NGANJIWA V. FEDERAL REPUBLIC OF NIGERIA (supra) that the Court lacked jurisdiction to entertain the criminal action filed against the 1st Defendant. As at the day, the 1st Amended Information was yet to be filed. As at that day the 12th witness for the prosecution was still giving evidence. One would have thought that the Prosecution would have urged the Court to strike out the case as a consequence of the decision of the Court of Appeal. But No! The Prosecution still persisted, like a bull running amok, amended the information and called 2 (two) further witnesses.  It ought to be pointed out for record purpose that a counsel is a minister in the temple of justice and as an officer of the Court, a counsel has a duty to assist the Court than to mislead it. In other climes, where learned counsel that find themselves in such a position, as an officer of the court will have brought a proper application to have the case abated. Why the Prosecution went on with proceedings when it is obvious that all what the Court was doing amounted to a nullity is best known to them. Precious judicial time had been wasted. Though the Court is aware of the provision of section 285 (1) of the Administration of Criminal Justice Law, 2015, which is against a Private Prosecutor, it is so unfortunate that in our judicial system, we have still not devised ways and means to condemn a Prosecuting Agency of the Government, be it State of Federal, in a criminal action by the payment of heavy cost in situations as this instance , having in mind that a defendant will have incurred cost in defending the charge, albeit a worthless charge. It has to be restated that there is no doubt that a counsel is duty bound to present his client’s case with utmost devotion. But such devotion must be coloured with professional discretion. In other words counsel must be the master in the conduct of his client’s case and should not be dictated to by his client as to how to conduct his case. It is in recognition of that authority of counsel that Rules 14© and 18(a) of the Rules of Professional Conduct in the Legal Profession, published as Government Notice No. 69 in Federal Official Gazette No.5 of 18th January 1980 which deal with how far a lawyer may go in supporting a client’s case and the right of the lawyer to control the incidents of trial, makes it a provision of a law.”

It was as if the Court of Appeal had the duo of Ibrahim Magu and Rotimi Oyedepo in mind when, earlier, in DR. OLU ONAGORUWA v. THE STATE (1993) LPELR-43436(CA), Tobi, J.C.A. (as he then was, later J.S.C. but now of the blessed memory) warned that:

On no account should the prosecution go out of its way in search for evidence to prosecute when it is not there. When it degenerates to such a situation of ‘hunting down’, the prosecution is no more regarded as the prosecutor but as a persecutor. And that is not consistent with the philosophy of our adversary system of adjudication.

More importantly, on the 3^rd day of March, 2021, the Federal High Court presided over by the Hon. Justice Mohammed Liman discharged and acquitted the Learned Silk, Chief Godwin Obla, SAN of the charges preferred against him.

With this state of affairs, it is abundantly clear that the charges which Ibrahim Magu hauled at Chief Obla, SAN are indeed ‘worthless’ meant, principally, to destroy his reputation and bury his sterling practice image in the mud in a most despicable and evil manner of satanic media trial aimed at provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial nearly impossible but means that, regardless of the result of the trial, in public perception the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny, Manu Sharma vs. State (NCT of Delhi) 2010(2) ACR1645 (SC), AIR2010SC2352.

Herein lies the core why Ibrahim Magu should face criminal prosecution, which may best be initiated and prosecuted by his victims of unrivaled callousness and vendetta of unsurpassed gravity- which will be remembered to the end of time.

PRIVATE PROSECUTION OF IBRAHIM MAGU THROUGH DIRECT CRIMINAL COMPLAINT:

Section 89(1) and (5) of the ACJA, 2015 aptly provides thusly:

A person may make a complaint against any other person alleged to have committed or to be committing an offence

All complaints made to the court directly under this section may first be referred to the police for investigation before any action is taken by the court.

The question may be asked: what then is the intention of the lawmaker in providing for Direct Criminal Complaint in the ACJA despite recognizing the existence of other prosecutorial authorities? The answer is short and straight forward.

Our ancestors recognised that the Honourable Attorney-General of the Federation shall not have monopoly of prosecutorial powers even though all exercise of prosecutorial powers is to be regulated by him. This is clearly borne out by the wordings of Section 174(1) of the amended 1999 Constitution of the Federal Republic of Nigeria [henceforth herein called the constitution] which lucidly provides thusly:

The Attorney-General of the Federation shall have power:-

(a)    to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court martial, in respect of any offence created by or under an Act of the National Assembly?

(b)    to take over and continue any such criminal proceedings that may have been instituted by any other authority or person? and

(c)    to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.” (Emphasis supplied.)

Interpreting the above Section of the Constitution, the full panel of the Supreme Court (by a majority of 4-3) in F.R.N. v. Osahon & ORS (2006) 1 All N.L.R; (2006) 5 NWLR (Pt. 973) 361 authoritatively affirmed [per Pats-Acholonu, J.S.C.] that:

The implication of the intendment of section 174(1) aforesaid of the Constitution is that the office of the Attorney-General does not have the monopoly of prosecution though it has the power to take over any case in any Court and decide whether to go on with it or not

When called upon to interpret Section 143 of the Criminal Procedure Code Law of Kwara State that provides for direct criminal complaint just as Section 89 of the ACJA, the Court of Appeal in MRS. TOLULOPE ONIYIDE v. MR. TAIYE AYOTUNDE ONIYIDE (2018) LPELR-44240(CA) brilliantly excavated the intention of the Legislature in embedding direct criminal complaint in the statute books in this scintillating literature:

It must not be forgotten, too, that the clear aim of Section 143 of the Criminal Procedure Code Law of Kwara State in issue and similar provisions in the Criminal Procedure Code Laws of all the States constituting the old Northern Region of Nigeria is to make the initiation of criminal complaints simple so that any member of the general public who has any genuine criminal complaint can approach the Courts directly to lay it. It is something suggestive of an all hands on deck in the fight against crimes approach. That laudable objective ought not to be, and should not be allowed to be defeated… The long and short of it is that, until the Attorney-General exercises his powers under Section 211 of the Constitution of either taking over and continuing or discontinuing a private criminal complaint, such a complaint remains just what it is – a purely private affair of the complainant in every ramification including authority to instruct counsel to prosecute it.

It is against the background of the foregoing that victims of Ibrahim Magu’s legendary abuse of state powers may bring him to account so as to reckon with his misdeeds in the years when he (Magu) ‘felt he has become “God”, according to Monday O. Ubani, Esq. (another victim of Ibrahim Magu’s misuse of state power). The law amply supports it. That is the quiddity of Section 180 of the Penal Code Act. Upon a successful prosecution and resultant conviction, Mr. Ibrahim Magu faces jail terms for upward of seven years. By this, future (and today’s) prosecutors would appreciate that there are consequences ordained for falsely charging a person with having committed an offence knowing that there is no just or lawful ground for that proceeding or charge against that person. Additionally, prosecutors will have realised that such consequences could be effectively activated by their victims who may not necessarily wait for an Attorney-General that may not likely file the charge. Off course, Magu’s criminal trial by private citizens (such as his victims) is without prejudice to whatever sanction the Federal Government of Nigeria may have in stock for him at the appropriate time.

1. ROTIMI OYEDEPO:

Questions might be asked as to which fate befalls Mr. Rotimi Oyedepo regarding the shameful roles he played in the entire charade. The answer is straightforward. It is that he is currently facing the music before the Legal Practitioners Disciplinary Committee [LPDC] at the petition of the Learned Silk, Chief Godwin Obla, SAN encircling multiple infractions of the Rules of Professional Conduct. That approach of handling Mr. Rotimi Oyedepo (as against pressing criminal charge against him) is in sync with the exhortation of the Court of Appeal in DR. OLU ONAGORUWA v. THE STATE (supra) where Tobi, J.C.A. (as he then was, later J.S.C. and now of the blessed memory) counselled thus:

A Legal Practitioner qua advocate is a professional who happily belongs to a profession of very long standing and reputation. And as a professional, the law bestows on him certain privileges and immunities in the performance of his duties. The privileges and immunities are not bestowed on him for his personal edification or aggrandisement but in the overall “interest of the administration of justice in which the accused is the main figure and therefore the main “beneficiary.’ Therefore, before a Legal Practitioner is made to face a criminal charge, the police and the office of the Director of Public Prosecutions, as the case may be, should make sure that he has moved beyond the ordinary course of the performance of his professional duties and committed an offence known to law. Where the conduct of a Legal Practitioner borders essentially on professional ethics with no criminal flavour. I think the police and the office of the Director of Public Prosecutions should allow the appropriate professional body handle the matter in the best traditional methods…The point I am struggling to make is that it is not every aberrant conduct of the legal Practitioner that should attract criminal prosecution in a Court of law. There should be some deliberate effort in the prosecution decision to carefully remove the chaff from the grain and see whether there is enough in the grain to deserve and sustain criminal prosecution.

In drawing the curtain on this discourse, the hope is expressed that when and if ever Ibrahim Magu and Rotimi Oyedepo would have the opportunity to prosecute anybody again in this country, they would do well to remember the wise Counsel handed down by the Court of Appeal in DR. OLU ONAGORUWA v. THE STATE (supra) on how to exercise prosecutorial discretion to the effect that:

where the investigation does not succeed in assembling the relevant evidence to prosecute the accused to secure conviction, the best discretion is to abandon the matter and throw in the towel

To log out, I will join Saint Bernard of Clairvaux who centuries ago warned that, the road to hell is often paved with good intentions. Necessary as it is, the war against corruption must be fought within the realm of due process if it will not move from prosecution to persecution as was the case under Ibrahim Magu. I find here a convenient place to stop.

JOHNMARY CHUKWUKASI JIDEOBI, Esq. (joannesmaria2009@yahoo.com).