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).

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).