Attorneys General Of Federation Should Strive To Have Their Names Written In Gold

It is no longer news that on the 24^th of December, 2019, a former National Security Adv is er, Sambo Dasuki (who has been in the custody of the State Security Services (SSS) for more than four years), and Sahara Reporters publisher, Omoyele Sowore (held for almost five months by the same SSS), were released. In a statement by the  spokesman to the AGF Dr. Umar Gwandu, whelen he quoted the Attorney-General of the Federation (AGF) and Minister of Justice, Abubakar Malami, SAN an interview with the BBC Hausa and the Hausa Service of the Voice of America, the reason for the release of Dasuki and Sowore is as follows:

“The only reasons for the release of Omoyele Sowore and Sambo Dasuki revolved around our commitment to the rule of law, obedience to court orders and compassionate grounds.

“It is important to understand the fact that as far as the law is concerned and in relation to the Nigerian justice system, one has multiple options after a court has ruled on a matter.”

The release of the duo, particularly the reasons behind their release, have elicited mixed feelings amongst the citizenry. A prominent Human Rights Lawyer, Femi Falana, SAN challenged the AGF to the effect that the AGF has no power to release anyone on compassionate ground. But in a reaction by Malami reported in Punch Newspapers, on  31^st of December, 2019, he said that Falana’s statement “is replete with misinformation and evinces lack of proper understanding of the law and issues implicated.”

He said, “First, it is beyond doubt that the Federal Government of Nigeria or any prosecuting  authority has been vested with constitutional right of appeal in criminal prosecutions.”

He added as follows: “A lawyer of Mr Falana’s status should thus desist from stretching arguments beyond reasonable limits in order to score cheap political points. It is a common knowledge that Prerogative of Mercy and compassion simpliciter are two different concepts.”

MALAMI, SAN SHOULD NOTE:

No doubt, the position of the Attorney-General is a constitutional one and in the case of Esokoro vs The Government of Cross River State (1991) 4 NWLR (pt 185) page 322, it was held that the Attorney-General is the legal advisory of the Federation. In the words  of Tobi JCA as he then was, the Attorney-General:

“is not only the head of the ministry of justice, but also the Chief Legal Adviser of the Government. He is basically responsible in law for Government’s actions and the in actions. He is the mouthpiece of the government as far as the law is concerned, He is Government’s Chief Spokesman on the law, if I may so romantically designate him.”

In State v. Ilori (1984) 5 N.C.L.R. 40, the Attorney-General of the Federation was also said to be “master of his house and a law unto himself.”

Malami, SAN was therefore right when he directed or advised the DSS to obey the order of the Federal High Court to release Sambo Dasuki and Sowore.

However, where Malami, SAN got it wrong was when he said that the release of sowore was on compassionate ground and insisted on it even when he was challenged. It makes it look as though the AGF is not under an obligation to release the duo.

With profound respect to the learned AGF, compassion is not recognized anywhere under our jurisprudence as a ground (if indeed there is a legally recognized ground in the first place) for refusal to release anyone ordered to be released by a court of competent jurisdiction. In other words, once a court has made an order, it must be obeyed. It is not for anyone, including the AGF, to use any reason whatsoever to keep anyone in detention. See FIDELITY BANK v. THE M.T. TABORA & ORS (2018) LPELR-44504(SC) where it was held as follows:

“it is a settled principle of law that every party to a suit, and indeed every citizen, has an obligation to obey the subsisting Court decision or order in the suit unless and until it is set aside. And the party’s obligation to obey the decision is without regard to his perception about the irregularity or illegality of the decision as long as it subsists.”

See also Akinyemi v Soyanwo (2006) 13 NWLR (Pt.998) 496 perTabai JSC at page 514 and Odogwu v Odogwu (1992) 2 NWLR (Pt.225) 539

We submit that the learned AGF was not correct when he asserted that Dasuki and Sowore could be kept in detention there is an appeal against the order if the Court or the  when application is made for the setting aside of the release order. If we are to take a stroll down memory lane, The Nigerian Military were lambasted, on this same issue of refusing to release a detainee on the basis of Appeal, by the Court of Appeal in the case of Nigerian Army v Mowarin (1992) 5 NWLR Pt 235 P. 345 CA. In this case the Nigerian army detained Mowarin. On application by OLISA AGBAKOBA, ESQ (now SAN), the court ordered for her release but the Army refused to release her. Rather, they filed an appeal against the order for her release and also filed a motion for stay of execution. The Court of Appeal held to the effect that a flagrant flouting of an order of the court by the executive (now DSS) is an invitation to anarchy.

“The same contemnors have come with very unclean hands supplicating before this Court for a grant of favor that would, as it were, legalise their contempt. I would like the applicants to a sinner who prays to God to assist him in the commission of his sins. Just as God will not listen to such supplication, this Court would not grant such a prayer.” The Court added

Malami, SAN should not forget the self inflicted plight of Mr. Michael Aondoakaa, SAN (as he then was) who served as AGF during Yar’adua’s tenure. In his capacity as the AGF, Aondoakaa was said to have advised the then Chairman of the Independent National Electoral Commission, Prof. Maurice Iwu, not to obey the final judgment of the Court of Appeal on an election petition which ordered that Emmanuel Obot be issued fresh certificate of return and be inaugurated. The plaintiff in suit number FHC/CA/CS/50/2009, dated May 5, 2009, sued Aondoakaa as the AGF and in his personal capacity. After hearing the matter Justice Adeniyi Ademola perpetually barred Aondoakaa from occupying or holding the office of the AGF and Minster of Justice and public offices in Nigeria. He was also stripped of the Senior Advocate of Nigeria’s title.

The judgment was affirmed by the Calabar Division of the Court of Appeal on the 3rd of September, 2015. The Court of Appeal, in the unanimous decision of its three-man panel, led by Justice Chioma Nwosu-Iheme, held that in his capacity as the AGF, Aondoaka “undermined and subverted the rule of law, the due administration of justice and the independence, authority and integrity of the judiciary.”

Justice Oyewole, in his concurring judgment, described the facts leading to the appeal as “a sordid low in the administration of justice in this country.” “It is unthinkable that the occupier of the exalted office of Attorney General would subvert the ends of justice as was crudely done in this case by the appellant (Aondoakaa),” Justice Oyewole held while adding that “public office is sacred and an Attorney General should epitomise all that is good and noble in the legal profession.” Justice Oyewole added, “That office should never again be occupied by individuals of such poor quality as the appellant. “It is ironic that the appellant could approach the same temple he so brazenly desecrated for succour against the consequences of his appalling conduct.”

In the light of the foregoing, we submit that Malami SAN as the Attorney General of the Federation is expected to know the law, enforce due process and advance the cause of justice. He cannot be AGF forever. He ought to strive to have his name written in gold as AGF, not otherwise. Agreeably, a Minister/Commissioner of the Government is basically a political appointee, exercising delegated authority as determined by his appointor – the President or Governor as the case may be. However, the office of the Attorney General’s although appointed by the President or Governor has direct constitutional responsibilities and direct authority to discharge his primary responsibility, thus his commitment should be strictly to the rule of law, he should not mix the law with politics, cherry-picking in the temple of justice, and politicizing the management of cases. We have enough anarchy in the country already; we do not need to extend the frontiers of anarchy by allowing government to break the law. The men of today should guard against setting dangerous precedents that could consume them and the country tomorrow. The rate at which institutions have been bastardized to pave way for recriminations and vengefulness is bound to bounce back negatively and our democracy will be worse for it.

TheNigeriaLawyer Editorial