A Federal High Court in Abuja on Tuesday dismissed a suit by a former governor of Osun State, Mr. Olagunsoye Oyinlola, seeking an order compelling the Attorney General of the Federation to prosecute the MTN Nigeria Communications Limited for allegedly suppressing evidence.

Oyinlola had instituted the suit following the refusal of the telecommunication company to furnish the National Judicial Council with a complete call logs of the retired President of the Court of Appeal, Justice Ayo Salami.

Salami’s call log had become an issue following a petition to the NJC that he had communicated on many occasions with some leaders of the now defunct Action Congress of Nigeria while handling the Osun State governorship election dispute at the appeal tribunal.

The appeal tribunal had backed Oyinlola as the governor of Osun State in 2010.

Oyinlola had, in 2013, filed an application for judicial review for an order of mandamus to compel the Minister of Justice and the AGF, Mohammed Adoke (SAN), to initiate criminal prosecution against MTN for allegedly suppressing evidence.

But in his judgment on Tuesday, Justice Adeniyi Ademola, held that it lied in the discretion of the AGF, under Section 174 of the 1999 Constitution to initiate public prosecution.

Though the judge agreed with Oyinlola that Section 174 of the 1999 Constitution provided for the granting of order of mandamus against a public officer, it also provided the attorney general with the discretion to initiate public prosecution.

He held that for order of mandamus to be issued on a public officer, there must exist a public duty and not one in which they had discretion to perform.

He further held that, as against the contention by the applicant (Oyinlola), Section 174 preserved the discretion of the AGF.

The judge held that granting the order of mandamus, under Section 174 of the Constitution, was discretionary in nature, and that the court had the discretion to grant or refuse it.

“The first respondent (AGF) in exercising his discretion under Section 174 of the Constitution cannot be questioned by anyone, not even the person of the President of the Federal Republic of Nigeria,” the judge held.

He added that if the AGF abused his position, he could only be checked through public opinion or re-assigned to other offices or be removed from office by the President, who is the appointor.

“In conclusion, this court cannot issue an order of mandamus to compel the first defendant to initiate prosecution against the second defendant for alleged attempt to suppress evidence.

“Having taken into consideration the public interest, interest of justice and the right of the AGF to prevent the abuse of legal process and that in the exercise of his powers under Section 174 of the Constitution, the first respondent has discretion. Accordingly, order of mandamus cannot be issued against the first respondent. The application fails and it is hereby dismissed.”

Oyinlola alleged that there were contacts between Salami and the defunct Action Congress of Nigeria chiefs, an allegation that made the NJC to demand the call logs of the some phone contacts.

The phone contacts were as follows – 0803401111 belonging to Mr. Lai Mohammed; 08062240104, 08034240000 to Bola Tinubu and 08034004887 to Salami.