*Says charge against them is 'abuse of court process'

*Faults AGF's role

Justice Gabriel Kolawole of the Federal High Court, Abuja has refused an ex-parte motion for injunction to restrain the Inspector General of Police (IGP) and the Attorney General of the Federation (AGF) from proceedings with the charge filed against Senate President Bukola Saraki and three others over the alleged forgery of the Senate Standing Orders 2011 based on the police report issued on the case.

The judge, however, described as 'an abuse of court process' the decision of the AGF to file the charge marked CR/219/2016 during the pendency of a suit filed by a member of the Senate, Gilbert Emeka Nnaji, challenging the competence of the police report.

Justice Kolawole queried the motive of the AGF, Abubakar Malami (SAN), who he noted had participated in the Nnaji case before his appointment as the AGF. He wondered why Malami was in ‘desperate haste’ to proceed with the charge when he was aware of a suit challenging the report on which the charge was based.

The judge, in a ruling on June 28 on the motion ex-parte by a Gilbert Nnaji, a Senator, said, having found that the filing of the charge amounted to an abuse of court process, he would have proceeded to dismiss it, but because the charge is pending before the High Court of the Federal Capital Territory (FCT), with a coordinate jurisdiction with his court. A copy of the certified true copy (CTC) of the ruling was sighted in Abuja yesterday.

Nnaji had filed the substantive suit on July 23, 2015 on learning that the police was about to publish its investigation report on the forgery reported to it through a petition by Senator Suleiman Othman Hunkuyi of the Unity Forum. On July 27, 2015, the judge refused the plaintiff ex-parte prayer for an order directing parties to maintain status quo pending the determination of the substantive suit, but instead directed the 1st defendant – IGP- (because a substantive AGF was yet to be appointed) to show cause why such order should not be granted and adjourned to August 4, 2015.

On the next date, the IGP and the Solicitor General of the Federation (SGF), Taiwo Abidogun (who represented the AGF), did not show cause as ordered by the court, but filed a notice of objection, challenging the jurisdiction of the court to hear the suit. Hunkuyi, represented by a team of lawyers including Mamman Osuman (SAN), Dele Adesina (SAN) and Abubakar Malami (SAN), applied to be joined as party to the suit.

Hunkuyi's motion for was later struck out when his lawyers did not attend court to move it. While the substantive case by Nnaji and the notices of objection by IGP and AGF were pending, Malami was appointed AGF, shortly after which Justice Kolawole fixed hearing of the suit and all pending objections for July 6, 2016 at 11.45am.

Before the hearing date fixed by Justice Kolawole, the office of the AGF filed a charge against Saraki and three others before the High Court of the FCT based on the police investigation report, which formed the subject of the suit before Justice Kolawole. To stop the arraignment of Saraki, Deputy Senate President Ike Ekweremadu and two others named in the charge, Nnaji returned to the court with the ex-parte motion for restraining orders against the IGP and AGF.

The motion was heard on June 27 by Justice Kolawole, who fixed June 28, for ruling. Saraki and others were also arraigned before the High Court of the FCT on the charge filed by the AGF June 27. In his ruling on June 28 Justice Kolawole faulted the decision of the AGF to proceed to file a charge based on the police report when the suit challenging the report was still pending.

He held that although as the AGF, he has the constitutional powers to institute and discontinue criminal proceedings on behalf of the federal government, he must exercise such powers in public interest. Justice Kolawole noted that, although the charge was filed by a lawyer in the Federal Ministry of Justice, the official acted as an agent of the AGF, who was listed as one of the leading senior lawyers who filed an application for joinder on behalf of Hunkuyi, who until his (Malami’s) appointment, was his client.

"Having regard to the peculiar facts which I have analysed, the said criminal charge dated 10th June 2016, attached as Exhibit B to the plaintiff's motion ex-parte dated 23rd June 2016, given the course of these proceedings as I had, in detail, highlighted, can only be seen a one that constitutes an abuse of court legal process to use the very words in Section 174(3) of the Constitution.

"In all these facts and issues, having regard to the pendency of this suit in which the defendants have both filed processes, one question that did not cease to resonate in my thoughts is why this desperate haste to prefer the criminal indictments in Exhibit B – the investigation of which is at the heart of this suit and of the parallel suit in Exhibit 2, and the indictments, by law are not time barred as the substantive suit before this court, has by consent of both the plaintiff counsel and defendants counsel, been scheduled for 6th July 2016 for hearing.

He, however, refused that applicant's request to quash the police report on the grounds that the report was not attached to the motion and that it was not placed before the court. Justice Kolawole also refused to void the charge before the FCT High Court on the grounds that the charge was before another court of equal jurisdiction.

The judge also said: "In terms of the restraining orders which the plaintiff seeks in the prayer one of his motion ex-parte, I am unable to grant the prayers because the plaintiff has not been able to overcome the issue of his locus standing, which i had raised at the proceedings of 27 July 2015.

"It is not sufficient, when the Supreme Court's decision in Senator Abraham Adesanya v. President of Nigeria & another (1981) 5 SC 112 is applied, for the plaintiff, who has not shown that he is one of the defendants listed in the criminal charge attached as Exhibit B to this motion ex-parte, to be conferred, in the context of the provision of Section 6(6)(b) of the Constitution 999 (as amended) with the cloak of an 'aggrieved' person who ought to be granted access to ventilate his grievance and to seek the interim orders in his motion ex-parte," Justice Kolawole said.