By Hadiza Nasir Ahmad Esq
On April 26th, while I was at Miller Road waiting for my case to be called, I observed a case that caught my attention.
An applicant, a retired chief magistrate, was seeking leave of court to compel the Attorney General (A.G.) of Kano State to file a charge against Alhassan Ado Doguwa, the member representing Doguwa/Tudun Wada Federal Constituency, under Section 211 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
Hearing the application of the applicant seeking for an order of mandamus. Mandamus is an order of the High Court commanding a public authority or official to perform a public duty, the performance of which the applicant has a sufficient legal interest in.
A write of mandamus is basically a last resort. All other options to resolve the situation legally must have been attempted or not applicable before a judge considers granting a writ of mandamus. Also, the risk of a serious injustice occurring if action is not taken must be present.
My mind recall the provision of sec 211 of the 1999 Constitution as Amended.
Section 211 of the Constitution of the Federal Republic of Nigeria states:
“(1) The Attorney General of a state 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 offense created by or under any law of the House of 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.
(2) The powers conferred upon the Attorney-General of a state under subsection 1 of this section may be exercised by him in person or through officers of his department.
(3) In exercising his powers under this section, the attorney-General of a state shall have regard to the public interest, the interest of justice, and the need to prevent abuse of legal process”
By the provisions stated above the Attorney General is a law as he has the power to institute or discontinue.
However, when it comes to criminal matters the police by the provision of the law are saddled with the responsibility of investigation of a matter, and unless the police finish their investigation and a prima facie case has been established the Attorney General cannot act on the basis of speculation and propaganda he can only institute criminal proceedings on the basis of investigation of the police.
Section 31 of the police act 2020 states :
Where an alleged offense is reported to the police or a person brought to the police station on the allegations of committing an offense, the police shall investigate the allegations in accordance with due process and report its to the attorney general of the federation or of a state as the case may be for legal advice
The Attorney General going contrary to this will amount to acting against the constitution of the federal republic of Nigeria 1999 as amended and also it will be term an abuse of legal process and also exceed his constitutional powers.
The Attorney General must act according to the provisions of the law and will not act on the basis of hearsay and speculation.
Surprisingly and despite knowing all these provisions the applicant who is not a layman, who is a retired magistrate with more than twenty years at the went to court, use the instrumentally of the law and trick my lord into granting him leave for an order to compel the Attorney General of Kano state to act against the law and abuse the legal process.
As a retired chief magistrate who presided over thousands of similar cases before retirement, the applicant should have known that under relevant laws, where a matter is sent to the police for further investigation, the Attorney General cannot file a charge without waiting for the police’s findings or investigations on that matter.
The retired chief magistrate’s actions of going to court to seek a leave of court to compel the Attorney General to charge Hon Doguwa were political and not done in good faith, only to heat up the polity and gain favor with his party or seek an appointment.
Section 36(5) of the 1999 Constitution (as amended) is clear: the accused person is presumed innocent until the contrary is proven. In this case, the matter is already with the police for investigation, a special team was sent by the Inspector General of police headed by the AIG from the Force headquarters to conduct investigation of the matter, the case diary is already with them so the Attorney General can not do anything he had to wait for the findings of the police.
It is unclear why a retired chief magistrate did not investigate and prepare before going to court to seek an order to compel the Attorney General to prepare a charge against a case already under investigation.
It seems that the former chief magistrate only cares about himself and what he can gain from the government, and he does not care about violating the provisions of the law for his selfish motives. As a lawyer, one should not do anything to ridicule oneself or the legal profession.
I left the court after finding out my case was not on that day wondering what will become of our noble profession since the seniors now for selfish motives are ridiculing the profession and doing what we are all fighting against.
Hadiza Nasir Ahmad Esq
Is a Legal Practitioner based in Kano.
