Fagboyegun, Ondo CJ And AG: Is It Law Or Politics That Is Playing Out?

TheNigeriaLawyer Editorial

Background

On the 15th of February, 2021, one Mr Olupelumi Fagboyegun, in a viral video accused the Ondo state Judiciary and the office of Chief Judge of Ondo State, Honourable Justice O. O. Akeredolu, of using the Magistrate Court to persecute him unjustly and keep him on trial for a period of 3 years for an offence punishable with 1 year imprisonment. This video went viral and it attacks the integrity and independence of Courts in Ondo State. It also suggests a connivance of the Prosecution team and the Court in delay of Justice in the matter. In response, the Chief Judge denied all the allegations adding that Fagboyegun was been used by some persons.

The Ondo Judiciary also reacted. It says Fagboyegun was on a mission to tarnish the image of the Judiciary. In fact, they said Fagboyegun was not in detention at the order of any High Court or Magistrate of the state adding that Fagboyegun had never spent a day in custody. The Chief Registrar who signed the letter, Mrs. Bolatito Ajibade, explained that the trial of Fagboyegun was still ongoing.

The Former Attorney General and Commissioner for Justice of Ondo State, Charles Titiloye stepped in to investigate the matter and swung into action – investigation. Consequently, he exercised power of nolle prosequi and discontinued the matter. The trial of a case of Conduct likely to breach peace which is a misdemeanor (simple offence punishable with 1 year imprisonment) regrettably has taken a period of 3 years in a Magistrate Court with summary Jurisdiction. He advised to seek the resolution of their dispute in the Court through a civil action or other means of alternative dispute resolution available to them. The AG also invited the House of Assembly “to investigate issues relating to the delay in the hearing of this case before the Magistrate Court, Owo for three (3) years, that is 2018 to 2021.” And also “referred to Ondo State House of Assembly for investigation.”

ISSUES

A lot has unfolded since Fagboyegun released a video in respect of this issue. The following questions are therefore inevitable: was Fagboyegun truly under persecution from the Chief Judge and the Judiciary? Can an AG who has ceased to be in office discontinue criminal trial? Can house of Assembly investigate the Chief Judge? Is there political undertone in the case?

Power of Nolle Proseque

The Attorney-General of Ondo State was not specific on the rationale behind the nolle proseque he entered in favour of Fagboyegun. He merely narrated his own findings in respect of the case and decided to discontinue the case. We want to believe that the discontinuance of the matter will not stop in the media, rather, the required step of formally applying before the court will be followed. He knows better.

Another question is: was the AG right to have discontinued the matter? Well, in the case of State v Ilori (1983)1 SCNLR 94 it was held that the AG is a law unto himself and is not answerable to anyone apart from his employer – president or the governor as the case may be; even court cannot question him. But in the circumstance, we agree with NBA Akure that the AG’s action was wise in view of the controversy and interest the case has generated world-wide.

But another fundamental issue is that the governor of the state, Rotimi Akeredolu, SAN, dissolved his cabinet on the February 18, the very day that nolle proseque was announced by Sir Charles Titiloye, the then AG. Could he have validly entered nolle proseque that day given the dissolution of cabinet by Akeredolu? Was his action not ultra vires? It is our view is that if, as newspapers reported, Titiloye was among the cabinet members that were dissolved that day, then the nolle proseque he entered was null and void.

Whether Ondo House of Assembly can investigate the Chief Judge

The former AG in his statement referred the matter to the Ondo State house of Assembly for investigation. The referral has elicited mixed reactions amongst lawyers as to whether the Ondo House of Assembly has power to investigate Hon. Justice Akeredolu.

The powers of Houses of Assembly of the various States to conduct investigations are provided for under section 128 CFRN 1999 which provides as follows:

“128 (1) Subject to the provisions of this Constitution, each a House of Assembly shall have power by resolution published in its journal or in the Official Gazette of the Government of the State to direct or cause to be directed investigation into –

(a) any matter or thing with respect to which it has power to make laws, and

(b) the conduct of affairs of any person, authority, ministry or government department charged, or intended to be charged, with the duty of or responsibility for –

(i) executing or administering laws enacted by that House Assembly, and

(ii) disbursing or administering moneys appropriated or to be appropriated by such House.

(2) The powers conferred on a House of Assembly under the provisions of this section are exercisable only for the purpose of enabling it to –

(a) make laws with respect to any matter within its legislative competence and correct any defects in existing laws; and

(b) expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.”

An examination of section 128 above which is the exact equivalent of section 88 of the same Constitution lends itself to the interpretation that there are two categories of matters that the House of Assembly can conduct or cause to be conducted, investigation or inquiry into

• a subject matter or thing in respect to which the House of Assembly to make laws and
• a person, authority, ministry or government department charged, or intended to be charged, with the duty of or responsibility for executing or administering laws or and disbursing or administering money.

Hon. Justice Akeredolu is obviously a person and also an authority. She administers laws and money of the judiciary. This being the case, she falls within the category of persons that can be investigated by the House of Assembly. But that’s not all, there is another angle to it. The above provision says even if one is under the category of persons to be investigated, the subject matter must be within the legislative powers of Ondo House of Assembly. Is therefore necessary to know on what basis she will be investigated. If same is not specified, it will be difficult for us to know whether the investigation will be ulta vires or not

Another requirement is that for it to be valid, such investigation or inquiry must be only for the purpose of enabling the House of Assembly to ‘make laws’ and ‘correct defects in existing laws’. In like manner, Constitution also provides in section 128 (2)(b) thereof that the investigation or inquiry must be for the purpose of exposing “corruption, inefficiency, or waste in the execution or administration of laws within its legislative competence and in the disbursement of funds appropriated by it.” The question now is: Of what purpose would Justice Akeredolu be investigated? We cannot also tell for now.

In the light of the foregoing, it will be too early to conclude as to whether investigation against the CJ by the Ondo House of Assembly will be legal or not. But one thing must be emphasized, the CJ can only be investigated when the above requirements are met. This position was emphasized by the Court of Appeal in the case of Tony Momoh v the Senate (1983) 4 NCLR P.295 where per Nnaemeka-Agu JCA (as he then was), in interpreting s. 82 of the I979 Constitution, which is in pari materia with s. 88 of the 1999 Constitution, held that: “Section 82(2) is designed to eliminate abuse. Any invitation by the House to any person outside the purposes defined by Section 82(2) of the Constitution is invalid. No power exists under the section for general investigation nor for the aggrandizement of the House.”

Similarly, in El Rufai v. House of Representatives (2003) FWLR (pt. 173)162, the Court of Appeal, per Oguntade JCA (as he then was) held inter alia: “in my view their power under the section is further circumscribed and limited by subsection (2) of Section 82. They can only invite members of the public when they want to gather facts for the purpose of enabling them make law or amend existing laws in respect of any matter within their legislative competence or as witnesses in a properly constituted inquiry under section 82(1) (b)”.

Looking at it from the flipside, would it be usurpation of the powers of NJC for the Ondo House of Assembly to invested Justice Akeredolu even if her case have met all the requirements of section 128 of the constitution?

Item 21 (d) of the 3rd schedule, part 1 to the constitution read together with section 153 of the same Constitution vest exclusive power on the National Judicial Council (NJC) to “recommend to the Governors the removal from the office of the judicial officers…and to exercise disciplinary control over such officers.”

The above provision has been interpreted in plethora of cases including Opene vs. NJC & Ors (2011) LPELR-4795(CA) and Bamisile vs. NJC (2012) LPELR-8381 (CA).

In Elelu-Habeeb vs The Attorney General of the Federation and ors (2012) 13 NWLR (Pt.1318) 423 the apex Court said:

“Therefore the Governor of Kwara State and the House of Assembly of Kwara State acted outside their powers since they arrogated onto themselves the powers of the National Judicial Council which they had no authority to do. When the Constitution has stated steps that must be taken before an action can proceed then omitting to do so would render such an act one made in futility. The Governor of a State must await the recommendation of the NJC before proceeding to act with the State Assembly on the removal of a Judicial Officer including, the Chief Judge.”

Recently, in NGANJIWA v. FRN(2017) LPELR-43391(CA) the Court of Appeal said, Whenever there is an allegation of official misconduct against a judicial officer and such judicial officer is not referred to the NJC, it amounts to jumping the gun and ipso facto a direct violation of the Constitution. Recourse to the National Judicial Council is a condition precedent and any attempt by any Agency of Government to by-pass the Council will amount to failure to observe condition precedent thereby leading to flagrant violation of the Constitution.

However, a careful examination of the decisions where the above provision was interpreted relate to removal or prosecution. It appears that none of them deal solely with investigation. In fact, even with respect to prosecution, the Court of Appeal was clear in nganjiwa v FRN that is not in all circumstances that NJC must be contacted first. Giving an example of circumstances when NJC can be bypassed, the Court held as follows:

“It must be expressly stated that if a judicial officer commits theft, fraud, murder or manslaughter, arson and the likes, which are crimes committed outside the scope of the performance of his official functions, he may be arrested, interrogated and prosecuted accordingly by the State DIRECTLY without recourse to the NJC. These classes of criminal acts are not envisaged and captured by the provisions of Paragraph 21, Part 1 of the Third Schedule.”

As stated earlier, it seems there is no case where court interpreted paragraph 21 of 3^rd Schedule to the constitution as it relates to investigation. The cases where investigation of judicial officers were mentioned were purposely for removal of such judicial officers from office or for Disciplinary action. We have read from section 128 of the constitution that the purpose of investigation by the House of Assembly is not to discipline or remove anybody from office, but rather, to enable the House of Assembly to ‘make laws’ and ‘correct defects in existing laws’. It can also be to expose “corruption, inefficiency, or waste in the execution or administration of laws within its legislative competence and in the disbursement of funds appropriated by it.”

Taking the argument further, can it be the contemplation of the framers of the constitution that if the House of Assembly wishes to investigate a Judicial officer to enable it make law, it must first of all send the case to the NJC?

It is our view that that since the purpose of investigation under section 128 of the constitution is not to discipline or remove a judicial officer, House of Assembly can validly investigate a judicial officer. However, if the intention of the House is to remove or discipline a judicial office (which of course is not within the contemplation of section 128 in the first place), then such investigation would be ultra vires. But as stated earlier, it will be too early to conclude as to whether investigation against the Justice Akeredolu by the Ondo House of Assembly will be legal or not. Be that as it may, she can only be investigated when the requirements of section 128 of the constitution are met.

Political undertone

Apart from the legal issues above, there appears to be a touch of politics in the situation. TheNigerialawyer recalls that Hon. Justice Akeredolu declined the request to set up a panel to investigate the Deputy Governor for impeachment purpose. Justice Akeredolu, in a letter addressed to the Speaker, said the lawmakers had not completed the constitutional process that would lead the Speaker to invite her to set up an investigative panel as stipulated by the Nigeria Constitution.

The haste with which the matter was taken up by the AG is surprising. The matter went viral on February 16, how come an investigation was commenced and concluded and report released within 48 hours? From the report released by the AG, the CJ herself was not heard. According to him, the CJ was not on sit will be available only from February 22.

Furthermore, pictures of Fagboyegun have been seen on bill boards with the governor of the state, Rotimi Akeredolu, SAN. The bill board was sighted along the road to the state governor’s house at GRA, Owo with an inscription which reads:

“Now out

Pelumi Fagboyegun & his diaspora traditional band (AKA Papi Jofson)

Album titled: Aketi is the man for the job”

Does this mean that is Akeredolu or his ally that is sponsoring Fagboyegun if indeed he was been sponsored as alleged by Justice Akeredolu? Another picture was also found where Fagboyegun allegedly declared himself missing. The inscription reads,

“Son of Late Rev. Canon Johnson Olajide Fagboyegun (Jof).

He arrived in Nigeria on 7th March, 2018 and was last seen at his father’s compound, JOF ideal family farm, Oke Ogun, Owo in Ondo State. On 21st April, 2018 during a raid by multiple Armed men which he claimed were sent by his sister, the Chief Justice of Ondo State, Hon. (Mrs.) Justice Olarenwaju Akeredolu NEE Fagboyegun.

He is missing along with two of his Assistant. Please Help find them. Thanks you.

Whatsapp #+447448955331”

According to TheNigerialawyer findings, the billboard is still there intact as at 3.24pm February 18. The board is reportedly erected in- between the neck of the roundabout to the Owo prison & the Board of internal revenue/ licensing office on way to Aketi’s GRA palacial mansion. Curiously, the incidence referred to in the above inscription took place on March 15 not 21^st April. Moreso, hehad also been arraigned and granted bail even before that April 21.

Much more interesting again is the fact that Fagboyegun drew the attention of the media by claiming to have been in detention since the day he was arraigned to February 16 when he released the video. But the judiciary debunked it saying that Fagboyegun was not in detention at the order of any High Court or Magistrate of the state. In addition, the judiciary said Fagboyegun had never spent a day in custody that the trial of Fagboyegun was still ongoing. The AG confirmed the statement of the judiciary by saying that “It is untrue that he is under any form of Custody.”

These turn of events raise more questions than answers. If the report by the judiciary and the AG is true that Fagboyegun was never in custody, why did he suddenly raise false alarm? Doesn’t this justify Justice Akeredolu’s suspicion that he is been sponsored?

We most respectfully submit that the forwarding of this matter to the Ondo State House of Assembly and the NJC is itself suspicious. The former AG, in his statement said “Olupelumi Fagboyegun was granted bail by the trial Magistrate since he was arraigned on 19th March 2018, and he is still on bail till date. It is untrue that he is under any form of Custody.” Why then report the CJ to NJC and House of Assembly? Wouldn’t this compel one to suspect politics and interest? We think is politics because what Fagboyegun complained of was detention and it has been confirmed that there wasn’t detention. That should have been the end of the matter.

Well, is not for TheNigeriaLawyer to reach any conclusion in respect of this issue. We however are at home with the discontinuance of the suit. We hereby use this medium to tell the parties to this issue (majority of whom are from the legal profession) that the world is watching. They should avoid anything that will erode confidence that people repose in the judiciary, and indeed, the legal profession. More importantly, it will be good if Governor Akeredolu will distance himself from the suspicion that is flying around as a result of the pictures being seen bearing him and Fagboyegun.

TheNigeriaLawyer Editorial