COURT OKAYS TRIAL OF 2 LAWYERS, UPHOLDS LAGOS AG'S PROSECUTORIAL POWERS

A Lagos State High Court has dismissed a suit filed by senior lawyer, Mr. Ademola Owolabi, seeking to set aside legal advice issued by the Lagos State Attorney General recommending his prosecution over a disputed land transaction.

Justice Olalekan Oresanya held that the court lacked the jurisdiction to review the correctness of the Attorney General’s decision to prosecute, stressing that the constitutional powers of the Attorney General under Section 211 of the 1999 Constitution are discretionary and cannot be questioned through judicial review.

By this decision, the court effectively paved the way for the continuation of the criminal trial of the defendants at the Lagos High Court. Owolabi is facing a five-count charge alongside two others. The two other defendants are Mr. Alex Ochonogor, Managing Director of Bluecrest Integrated Concept Ltd., and Mr. Adebayo Akeju, principal of Adon Partners.

The three defendants are facing charges of conspiracy to commit forgery, forgery, and willful damage to property brought against them by the Lagos State government in the suit marked LD/23611C/2024.

Count 1 of the charge reads: “Conspiracy to commit a felony to wit: Forgery contrary to Section 411 of the Criminal Law,Ch.C17, Vol.3, Laws of Lagos State, 2015.

“Particulars of offence: Ademola Owolabi (M), Adebayo Akeju (M), Alex Ochonogor (M) and others (now at large) sometimes in year 2015 at B604, Safe court Apartments, Ikate, Lekki, Lagos State in the Lagos Judicial Division conspired among yourselves to commit a felony to wit: Forgery.”

In count 2, the defendants were charged with forgery contrary to Section 365 (1) of the Criminal Law, Ch. C17, Vol.3, Laws of Lagos State, 2015.

The count reads: “Ademola Owolabi (M), Adebayo Akeju (M), Alex Ochonogor (M) and others (now at large) sometimes in year 2015 at B604, Safe court Apartments, Ikate, Lekki, Lagos State in the Lagos Judicial Division with intent that it be acted upon as genuine did forge an affidavit of loss of certificate of occupancy purportedly sworn at the Registry of Ministry of Justice, Alausa, Lagos State on 23rd day of September, 2014 to falsely indicate that the original of Certificate of Occupancy Number 36/36/1994W issued to one Hamza Al- Mustapha got missing.”

Also, the defendants were accused of forging a Demolition Notice Number 0000025 titled “Audit of Illegal structures within Government Schemes Acquisition and Revocation Areas” purportedly issued by the Governor’s Office, Lands Bureau, Directorate of Land Regularisation, Secretariat, Alausa with the intent for it to be acted upon, contrary to Section 365 (1) of the Criminal Law, Ch.C17, Vol.3, Laws of Lagos State, 2015,

They were also accused of allegedly procuring a forged Memorandum of Loss of Certificate of Occupancy purportedly dated September 5, 2014 to falsely indicate that original Certificate of Occupancy Number 36/36/1994W issued to one Hamza Al-Mustapha Certificate got missing.

The defendants were also alleged to have willfully and unlawfully destroyed a bungalow located on Plot 10, Block 133, Lekki Peninsula Residential Scheme 1, Lagos State, property of one Dr. Obidigwe Eze, who resides abroad.

Owolabi and Akeju, who are both lawyers, were alleged to have materially aided Ochonogor, a businessman, in dispossessing Eze of his property located at Plot 10 Block 133, Lekki Peninsula Residential Scheme 1, Lagos State.

USP Communications Limited allegedly sold the land to Eze in May 12, 2005, leading to his building a bungalow on the land and being in peaceful possession ever since.

Upon alleged invasion of the property by the defendants, the Police waded in and investigated the root of their title.

The investigation revealed that Owolabi and Akeju allegedly forged a series of documents to establish that the property still belonged to Major Hamza Al-Mustapha, who was the original allottee, but had since sold the property in 2002 to Continental Properties, who in turn sold to USP Communications. USP Communications ultimately sold to Eze.

Dissatisfied that the Lagos Attorney General approved their trial before Justice Sherifat Sonaike based on the DPP Advice and following the Police Report indictment, Owolabi sued the Attorney General before Justice Oresanya.

In her ruling, Justice Oresanya described Owolabi’s application as “misconceived and bereft of fact and lacking in substance.”

Owolabi had specifically asked the court to declare that two legal advice documents issued by the Lagos State Ministry of Justice on January 3 and January 18, 2024, constituted an abuse of prosecutorial powers and were vindictive, oppressive and injurious.

He also sought an order quashing the legal advice, contending that the Attorney General improperly indicted him.

According to the applicant, he was engaged in 2015 as solicitor to conduct due diligence on a property located at Block 133, Plot 10, Lekki Phase 1, Lagos, on behalf of his client, Ochonogor.

He said his search at the Lands Registry revealed that the property had a registered Memorandum of Loss in the name of Major Hamza Al-Mustapha, after which his client proceeded to purchase the property for N85 million through another lawyer.

The dispute later escalated when Eze instituted a civil action over ownership of the property and also petitioned the Force Criminal Investigation Department, Alagbon, Lagos.

Owolabi maintained that although he cooperated with the police investigation as a witness, the Attorney General later issued legal advice recommending that he should be prosecuted alongside the two others.

He further argued that supplementary legal advice later removed Al-Mustapha’s name while retaining his own without any fresh investigation.

In opposing the application, the Lagos State Attorney General, through the then Director of Public Prosecutions (DPP), Dr. Babajide Martins (now retired), argued that the Attorney General is not bound by police investigation reports and possesses independent constitutional authority to determine whether criminal charges should be filed.

The state also maintained that the applicant failed to establish any abuse of prosecutorial powers or violation of his rights.

Delivering judgment, Justice Oresanya agreed with the respondent, holding that judicial review is concerned with the legality of administrative actions and not with the merit or correctness of decisions taken within lawful authority.

The judge held that the Attorney General issued the legal advice while exercising powers expressly conferred by Section 211 of the Constitution, adding that the discretion to determine who should be prosecuted remains absolute.

Relying on Supreme Court authorities, including Akpa v. State, the court held that the Attorney General is under no obligation to prosecute every person connected with an alleged offence or to explain why some persons are prosecuted while others are not.

Justice Oresanya further observed that a criminal case arising from the disputed legal advice was already pending before Justice Sonaike of the Lagos State High Court.

The judge ruled that allowing another court of coordinate jurisdiction to invalidate the legal advice underpinning the pending criminal proceedings would amount to interfering with a matter already before another court and could create “confusion and anarchy.”

According to the judge, the propriety of Owolabi’s indictment and the credibility of the evidence against him are matters to be determined during the criminal trial through oral evidence and not by way of judicial review.

“The applicant is challenging the correctness of the exercise of the respondent’s power and not its legality,” the judge held, adding that such issues fall outside the scope of judicial review proceedings.

Justice Oresanya consequently dismissed the originating motion, holding that it lacked merit and affirming that any challenge to the prosecution should be pursued before the court already handling the substantive criminal matter.

It was unclear at the time of this report whether the applicant will appeal the ruling.