Goje and the Abuse of Nolle Prosequi

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Danjuma Goje

A discontinuance of the trial of former Gombe State Governor, Senator Danjuma Goje, on the orders of the office of the Attorney General of the Federation has not only exposed the insincerity of the present government in the fight against corruption but the legality of the very action, writes Davidson Iriekpen

The fight against corruption under President Muhammadu Buhari was further dealt a fatal blow on Friday with the news that the Federal High Court in Jos had thrown out the corruption charges filed by the Economic and Financial Crimes Commission (EFCC) against former Governor of Gombe State, Senator Danjuma Goje.

The decision of the court was based on the orders of the office of the Attorney General of the Federation and Ministry of Justice throughnolle prosequi.
Goje, who governed his state from 2003 to 2011, and currently serving his fourth term in the Senate, was being prosecuted until the EFCC handed over the case to the AGF to continue with the prosecution alongside one Sabo Dakoro for selling 50 buses belonging to the state transport company.

The anti-graft agency had filed 21-count charge against the former governor, but 19 of the charges were later struck out leaving only two-count in Goje’s “submission of no-case”.
When the case came up for hearing on Friday, the counsel for the AGF, Pius Akutah, told the court that he had an application to withdraw the charges against the former governor.

“My Lord, we have an application having taken over the case and reviewed the 21-count charges of no submission and by the ruling of this court quashed 19 leaving only two count charges in which they are to enter defence.
“As it is, the Federal Ministry of Justice wishes to withdraw those two charges against the accused persons. This action is in line with the power vested on the AGF by virtue of section 128 of the Administration of Criminal Justice Act 2015 particularly sub section 1 of that section (128).

“It’s in accordance with the power vested on the AGF by the constitution that we wish to withdraw the charges before your lordship. This is our humble application and we urge your Lordship to grant our application,” Akutah pleaded.
Responding, counsel to Goje, Mr. Adeniyi Akintola (SAN), did not oppose the application. “My Lord, we are not opposing the application but we are urging your Lordship to evoke the provision of section 2(a)(b) of the Administration of Criminal Justice Act 2015 and acquit them of the charges. The same section gives your lordship the discretionary power to make an order for the accused persons to be discharged and acquitted.

“My Lord has the power under Section III. As we urge your Lordship to consider our humble application, we wish to thank you for your patience with us since 2011, when we started this journey on the case. We also wish to commend the AGF for wise decision in bringing this case to an end,” Akintola stated.

Quadiri, in his ruling, said pursuant to Section 174(1) particularly sub-section (b) and coupled with Section 108 (2) of 2015, “the application by the AGF to withdraw the charges is hereby granted. The accused persons are hereby discharged.”
The journey to discontinuing the case started, when Goje joined the race for senate presidency, which the All Progressives Congress (APC) had given to Ahmed Lawan on consensus. When it became obvious that he was the only one that could threaten Lawan for the top senate job, he was persuaded to step down from the race.

A meeting was later arranged for him to meet with President Muhammadu Buhari. Quickly, he played a fast move on the president. As a condition for him to step down, the former governor was said to have asked that the charges against him be dropped.
He was said to have told the president that the trial had not only drained his resources, but troubled him greatly, having always had to go to Jos each time the trial came up. At this point, the president acceded to the request. After the deal was struck, the president was said to have urged him to step down and support Lawan.

Even though the former governor later made everybody to know that he stepped down for Lawan out of respect for the party and President Buhari, it was when the case came a few days later that it became obvious what transpired.

According to reports, when the trial came up for an emergency hearing before Justice Quadri, the EFCC counsel, Wahab Shittu, told the court the agency was withdrawing from the case and handing it over to the office of the Attorney-General of the Federation (AGF) for continuation.
“My Lord, this case was earlier adjourned for June 20 for the continuation of hearing, but then we are here today on the latest development on the matter. We, as EFCC counsel, are withdrawing from the matter and handing it over to the office of the attorney-general for continuation with the prosecution. As you can see in court today, is a state counsel from the AGF’s office to formally take over this case from us,” the EFCC counsel was quoted as saying.

On June 9, 2019, the EFCC gave reason why it withdrew the charges against the former governor. It added that the Office of the AGF has the constitutional power to take over any criminal case at any stage of investigation.
The spokesman of the commission, Tony Orilade, said by virtue of the existing law, the office of the AGF has the power to take over any criminal case at any stage.

No doubt Section 174 of the 1999 Constitution confers enormous powers on the AGF to institute and discontinue criminal proceedings against anybody. While subsection (1a) states that: “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 any Act of the National Assembly,” subsection (1b) adds that “to take over and continue any such proceedings that may have been instituted by any other authority or person.”
Subsection (1c) goes on to state that: “To discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.” Subsection 3 quickly adds that in exercising such powers, the AGF must ensure that such discontinuance is for public interest, and in the interest of justice.

But the first question many analysts are asking is: is anybody presently occupying the office of the AGF? Can a vacant office or seat act?
Is it not in doubt that the AGF has the power to enter a nolle in court; the power cannot be delegated, however. The attorney-general himself must make the submission to the court. No other officer in his office has the power to make a nolle submission to the court to withdraw charges against a defendant.

Where there is no substantive person on the seat of the attorney-general, no other officer, not even the solicitor-general can enter a nolle in a case. This was the decision of the court in the case of Attorney General Kaduna vs Hassan,it was held that where there is no acting or substantive AG, then, the powers of the office cannot be exercised by any other person in his stead.
President Buhari dissolved his cabinet a day to his swearing in for a second term in office, including the former AGF and Minister of Justice, Abubakar Malami, and has not appointed anybody either in acting or substantive capacity since then. This, raises the question from when did the people, who withdrew Goje’s trail derive their powers?

Another contention the discontinuance of the Goje’s trial has raised is how does an anomaly meant to serve the interest of the recipient and bring opprobrium to the fight against corruption serve public interest or constitute the interest of justice?
For a government that rode to power on the strength and promise to fight corruption, receiving a great deal of applause from the local and international communities, the Goje case has no doubt given many Nigerians the opportunity to further doubt the sincerity of the fight.

Little wonder the Peoples Democratic Party (PDP) is claiming that the war is being used mainly as a political weapon to hound, intimidate and frustrate the opposition, while those accused of corruption in the ruling party are spared or treated with kid’s gloves.
This position was also shared by Senator Shehu Sani, who accused the ruling party of using insecticide against suspected corrupt people in the opposition and deodorant for those from the president’s camp

Observers feel that what has played out is not too far from the comments of the National Chairman of APC, Adams Oshiomhole, who during Buhari’s electioneering for a second term in office, stated that anybody with past “sins” who joins the party would have his/her “sin” obliterated or forgiven. Though Goje had been in the APC, the fact that he respected the wish of the party by stepping down for Lawan, his charges were subsequently dropped and charged to go and sin no more.
It is against the background that an associate professor at Kennesaw State University, Georgia, US, Farooq Kperogi, described President Buhari’s fight against corruption as unjust, selective and lacks transparency. He described it as the “silliest joke in Nigeria’s entire history.”

Kperogi accused Buhari of using the EFCC to arrest and harass his political opponents without giving them benefit of doubt. He noted that Buhari’s administration has two judicial standards for fighting corruption.
“Is there any anti-corruption crusade? As I said many times, Buhari’s so-called anti-corruption fight is the most invidiously selective, the least transparent, the most brazenly unjust, and the silliest joke in Nigeria’s entire history. Here is a man who doesn’t give his corrupt political opponents the benefit of the doubt.

“He orders their arrest, jails them, and uses the EFCC to smear them in the media on the basis of allegations, but tells astonishingly bare-faced and easily falsifiable lies to defend, deflect, minimise, and excuse the corruption of his close aides and political associates. You call that anti-corruption crusade? Please!
“It’s a perfect, poignant metaphor to encapsulate the scorn-worthy lies, deceit, double standard, and crying unjustness of the Buhari administration’s so-called anti-corruption fight. In Buhari’s Nigeria, there are two judicial standards for fighting corruption,” Kperogi said.