By Dayo Benson
UNDER the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Attorney-General of the Federation, AGF, and states’ Attorneys-General are regarded as the number one law officers of the country and their respective states. Specifically, the holder of the office at either level of government is vested with certain powers which can be exercised by him/her or sometimes delegated. Under Section 174 and Section 211 of the Constitution, the AG has the power to initiate, take over or discontinue (by entering nolle prosequi) any criminal proceeding in the overriding public interest.
This seemingly awesome constitutional power comes under public scrutiny especially when it is perceived to have been exercised injudiciously. Such is the situation in the recent case of THE STATE vs DEEPAK KHILANI & SUSHIL CHANDRA before Hon. Justice Atinuke Ipaye (SUIT NO. ID/1544c/2015) of the Lagos State High Court. The case has been attracting critical comments in legal circles since July 13, 2017, when an Assistant Director in the Lagos State Ministry of Justice, Akin George, entered a nolle prosequi on behalf of the State Attorney-General, Adeniyi Kazeem. The contentious issue is whether or not the power was exercised.
The defendants, Indians with British citizenship, were standing trial on allegations of felony, cheating, stealing and making false statements contrary to Sections 422, 421, 490 (7) and 436(a) of the Criminal Code Law, Cap C.17 Vol. 2, Laws of Lagos State, 2003.
They allegedly supplied some equipment to a company in Lagos, Green Fuels Ltd., through Gentec Ltd. However, the invoices for the said equipment were inflated by the defendants who failed to account for the difference between the prices claimed and the market value they submitted.
On April 30, 2015, the then Director of Public Prosecution, Mrs. Idowu Alakija (as she then was) now a judge, in her DPP’s advice to the police to prosecute, wrote ‘….the available facts revealed that the suspects fraudulently transferred 1,250,000 shares belonging to one Mr. Alhuwailato Industrial Energy Africa Ltd., a company owned by one of the defendants, Deepak Khilnani instead of transferring them to Mr. Ola Rosiji. There were clear discrepancies in the Corporate Affairs Commission records filed by the Page B.1 – Deepak Khilnani ‘furthermore, the available facts established that Industrial Energy Africa Ltd had a huge debt which suddenly disappeared without any explanation as to how it was cleared.’
On the basis of these and other well established facts, the DPP advised that a prima facie case had been established against them. They were subsequently arraigned before a Magistrate Court and the case was transferred to the Criminal Division of the Lagos State High Court.
The aggrieved complainants brief their counsel, Olayinka Daniels Esq, who promptly filed an amicus curae brief before Justice Ipaye, the trial judge.
In addition to allegations that the defendants defrauded unsuspecting Nigerian businessmen which led to their arrest before they were charged to court, Justice Ipaye had on April 3, 2017 ruled that the defendants, having failed to appear in court for their arraignment sequel to her earlier ruling on April 12, 2016, should be immediately arrested. She ordered the police to produce them in court on May 22, 2017.
But by a sudden twist of events, George, the counsel representing the AG, on June 29, 2017, gave notice to the court of the state’s intention to discontinue the case against the defendants and September 25, 2017, was given as return date.
Observers of the case were, however, confounded by the sudden twist of event. They could not fathom why a nolle prosequi was entered in the case before the return date. Many civil society lawyers regarded the action as hasty and uncalled for. Left with no option, the trial judge granted the application to discontinue the case as required by the law.
The development elicited widespread condemnations and protests, especially by workers of Green Fuels Limited, a Nigerian company from which Mr. Deepak Khalnani and Sushil Chanda allegedly diverted $8.8m through over-invoicing and money laundering.
The 28 lawyers led by Daniels argued that the powers of the A-G to discontinue a criminal case midway under Section 211 of the 1999 Constitution required an A-G at Sub-section (3) to do so with full consciousness of public interest and without compromising justice. This, they argued,had clearly not been the case.
The complainant, Rosiji who is the Chairman of Green Fuels Limited has written a petition to the Lagos State Governor and the Speaker of the Lagos State House of Assembly. The two defendants had been shuttling between Nigeria and the United Kingdom after they were discharged.
The use of nolle can be for a good cause and it can be abused. That is why some legal analysts have argued that the office of the Attorney-General be separated from that of the Minister of Justice or Commissioner for Justice.
Once it is exercised, this power of the A-G is not reviewable. The only person, who can review it, is the appointing authority. So, if the power is misused, it is only the governor that can review it. In the instant case, did the Lagos AG act in overriding public interest in good conscience or did he misuse the power? The answer blows in the wind.