UPDATED: Court Bars AGF From Prosecuting Ex-Ogun PDP Candidate Adebutu For Vote Buying

A Federal High Court sitting in Abuja has stopped the Attorney-General of the Federation (AGF) from continuing with a suit against a governorship candidate of the Peoples Democratic Party (PDP) in the 2023 election, Oladipupo Adebutu.

Adebutu, alongside nine members of his party, were accused of criminal inducement and vote buying during March 18, 2023 governorship election in the state.

Justice Inyang Edem Ekwo, in a judgement on Friday, held that prosecution of electoral offenders is the responsibility of the Independent National Electoral Commission (INEC) and not the AGF.

In a suit marked FHC/ABJ/CS1038/2023 and filed by Adebutu and nine others, the AGF was sued as the sole defendant.

The plaintiffs had, in their originating summons, prayed the court to stop the office of the AGF from prosecuting them over the allegation of vote-buying by Ogun State Governor, Dapo Abiodun, and the All Progressives Congress (APC).

They prayed the court to declare that the AGF cannot initiate, commence and continue the prosecution of electoral offences under the provisions of the Electoral Act, 2022, in view of sections 153, 158, 160 and paragraph 15, part 1, 3rd schedule of the 1999 Constitution.

They asked the court to determine whether the prosecution of electoral offences under the Electoral Act, 2022 is not the exclusive reserve of INEC in line with Section 145(2) of the Electoral Act and sections 153, 158, 160 and Paragraph 15, Part 1, 3rd Schedule of the Constitution.

Justice Ekwo, in his judgement, agreed with the plaintiffs that it is only INEC that can initiate and maintain criminal proceedings for offences under the Electoral Act, 2022.

The judge further held that initiation of the suit and commencement and prosecution of electoral offences under the Electoral Act, 2022, by the Office of the AGF and Minister of Justice, is a violation of sections 153, 158, 160 and Paragraph 15, Part 1, 3rd Schedule of the Constitution and sections 144 and 145(2) of the Electoral Act and the independence of INEC.

Justice Ekwo said the defendant by exercising the power to prosecute the plaintiffs in a manner not in accordance with the law is ultra vires, adding, “The power of the AGF to take over any proceedings can be challenged if the exercise of the power is not in accordance with the law.”

The court however did not grant some of the prayers of the plaintiffs, saying that will amount to tampering with decisions of courts of coordinate jurisdiction but held that the plaintiffs have established their case according to the law and are entitled to justice.

The plaintiffs also prayed the court to declare that it is out of the power of the AGF to arraign, maintain and continue their prosecution for alleged electoral offences before the Ogun State High Court in charge No. AB/10c/2023.

They further prayed the court for an order of perpetual injunction restraining the AGF from arraigning and continuing their prosecution for alleged offences before the High Court of Ogun State.

An affidavit in support of plaintiffs’ originating summons averred that Governor Dapo Abiodun and the APC, through the Ogun State APC chairman, Yemi Sanusi, wrote a frivolous and baseless petition to the AGF, accusing the first plaintiff (Adebutu) of vote buying during the governorship election and calling for his investigation despite already filing a petition before an election tribunal.

The AGF, through the Director of Public Prosecutions, had written to the police asking them to investigate the petition by Sanusi, which culminated in the police inviting the first plaintiff to report at their office on May 2, 2023.

The affidavit said that the AGF used an interim report of an investigation which has not been completed to file a charge against the plaintiffs and arraigned them before the Ogun State High Court, Abeokuta Division.

The affidavit said the charge is alleging vote buying whereas they were never arrested, neither did INEC write to the police to investigate any vote buying allegation against the first plaintiff.