Chief Gani Fawehinmi Vs Col Halilu Akilu & Anor. (1987)

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OBASEKI, J.S.C. 

This appeal raises two important questions which will continue to be debated in legal circles for a long time. The 1st question touches the locus standi of the appellant to initiate and institute these proceedings in the High Court. In other words, has the appellant established his locus standi entitling him to seek leave of the High Court to apply for an order of mandamus’ PAGE| 2 The second question concerns the quantum or sufficiency of the facts deposed to and placed before the High Court in an application of this sort.

In other words, are the facts in the affidavit evidence sufficient to warrant the grant of leave to apply for the order of mandamus and serve the respondent with notice of the application? Did the applicant make out a prima facie case of failure by the respondent to carry out his statutory duty? These two questions, simple as they are on paper, evoked learned legal arguments from the appellant’s counsel which took us to an examination of the rights conferred on private criminal prosecutors by the Constitution of the Federal Republic of Nigeria 1979 and both the Criminal Code Law and the Criminal Procedure Law of Lagos State.

As these proceedings originated in the High Court of Lagos State, it is necessary at this juncture to trace briefly the history of the case from the High Court to the Court of Appeal and from thence to this Court. In the High Court of Lagos State holden at Lagos, the appellant, by originating motion ex pane dated 7th November, 1986 applied for: “an order for leave to apply for an order of mandamus compelling Mr. J.A. Oduneye, Director of Public Prosecutions, Lagos State, to exercise his discretion whether or not to prosecute Col. Halilu Akilu and Lt. Col. A.K. Togun for the murder of Dele Giwa and if he declines to prosecute to endorse a certificate to effect on the information submitted to him by the applicant on Monday the 3rd day of November, 1986 pursuant to section 342(a) of the Criminal Procedure Law Cap 32 Laws of Lagos State 1973.” PAGE| 3 The statement filed along with the application contained the grounds on which the said relief is sought.

They are two in number and read as follows: “1. Mr. J.A. Oduneye, Director of Public Prosecutions, Lagos State, has a duty under section 342(a) of the Criminal Procedure Law Cap 32 Laws of Lagos State 1973, upon an information being submitted to him by a private person, to endorse thereon, a certificate stating whether he is declining to prosecute the accused at the public instance.

2. The failure of Mr. J.A. Oduneye, Director of Public Prosecutions, Lagos State, to endorse a certificate on the information submitted to him by the applicant on Monday, 3rd November, 1986 amounts to a breach of his statutory duty under section 342(a) of the Criminal Procedure Law Cap 32 Laws of Lagos State.” Filed along with the motion ex pane for leave is a 14 paragraph affidavit, paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 11 of which I find pertinent and material for the purposes of this judgment. These paragraphs read as follows:

“1. That I am a citizen of Nigeria and a legal practitioner. 2. That Mr. Dele Giwa, Male, Nigerian of 25 Talabi Street, Ikeja. was my client and friend before his death; 3. That the said Mr. Dele Giwa was killed by a letter bomb on Sunday, 19th October, 1986 at his residence. 4. That after conducting private investigation and upon the facts at my disposal I prepared a two count information charging; (a) Colonel Halilu Akilu – Director of Military Intelligence; and (b) Lt. Colonel A.K. Togun – Deputy Director of the State Security Service with the murder of the said Mr. Dele Giwa; 5. That on Monday, 3rd November, 1986, I submitted to Mr. J.A. Oduneye, the Director of Public Prosecutions, Lagos State, the said information together with the proofs of evidence, for his certificate under section 342(a) of the Criminal Procedure Law of Lagos State. Copies of the information together with all relevant documents including the proofs of evidence are annexed herewith and marked Exhibit “GF”

PAGE| 4 6. That on Thursday, 6th November, 1986, I returned to the said Director of Public Prosecutions to obtain his certificate under section 342(a) of the Criminal Procedure Law Cap 32 Laws of Lagos State, 1973 but he told me orally that he could not come to a decision whether or not to prosecute the accused persons at public instance as per my information and proof of evidence.

7. That further to paragraph 6 above, the said Director of Public Prosecutions refused to give me his reply in a written form. 8. That by the failure of the said Director of Public Prosecutions to exercise his discretion under section 342(a) of the Criminal Procedure Law of Lagos State, it is impossible for me to apply for the consent of a judge of the High Court of Lagos State to the preferment of the information against the accused persons. 9. That by the said failure of the Director of Public Prosecutions to exercise his discretion one way or the other, I do not know whether or not the accused persons will be prosecuted for the murder of Mr. Dele Giwa. 10. That further to paragraph 9, the accused persons have not been arrested by the Nigeria Police Force and they are still moving freely within Nigeria; 11 That if the said Director of Public Prosecutions endorses his certificate on the information and declines to prosecute the accused persons at public instance, I will prosecute the accused persons according to the Laws of Lagos State in particular and those of Nigeria in general.”

The application ex parte came up for hearing before Candide Ademola Johnson, C.J. After hearing the applicant, the learned Chief Judge, in a reserved Ruling, dismissed the application and refused the leave to apply for an order of mandamus. But the learned Chief Judge conceded to the applicant the right to apply or present the application as a private person. The learned Chief Judge therefore considered it unnecessary to examine the issue of locus standi in detail.

The learned Chief Judge considered the provision of section 191 of the Constitution of the Federal Republic of Nigeria 1979 and the duty of the Director of Public Prosecutions as an officer in the Department in the charge of the Attorney- General. The learned Chief Judge then considered the conditions to be satisfied by the appellant to entitle him to the grant of leave to apply for an order of mandamus. These he stated to be (1) the existence of a special application and (2) the existence of a refusal by the respondent. These were the conditions stated in paragraph 1021 at page 324 of Vol. 16 English and Empire Digest. It reads – PAGE| 5 “A special application and refusal are conditions precedent to a mandamus to compel performance of a duty. No general declaration of the party not to perform the duty required supersedes the necessity of such application – R. v. Chapman (1845) 4 L.T.O.S. 332.”

The learned Chief Judge conceded that the appellant made a special application. He did not go beyond that. He then examined whether there was a refusal of the application. The learned Chief Judge appreciated the fact that a refusal need not be by words or positive words. The acts of the parties may tantamount to a refusal and it should be shown that in effect there had been a refusal. The learned Chief Judge then proceeded to hold:

“It appears to me important to appreciate that the need to endorse any certificate would only arise when a decision has been taken one way or the other. Here, as it appears, no decision has yet been taken… In my view, this is not strictly correct. Indeed, it is an erroneous statement of the law. This is evident from a close examination of the provisions of section 342(a) of the Criminal Procedure Law. That paragraph reads:

‘The registrar shall receive an information from a private person If it has endorsed thereon a certificate by a law officer to the effect that he has seen such information and declines to prosecute at the public instance the offence therein set forth.” The duty that the appellant complains of the respondent has not carried out is that “having seen the information and having failed to decide to prosecute at the public instance the offence therein set forth, the Director of Public Prosecutions refused to endorse thereon “that he has seen the information and declines to prosecute at the public instance the offence therein set forth.” Where a law officer expresses that he is unable to come to a decision to prosecute, it cannot be interpreted that he has come to a decision to prosecute. It is more consonant with reason to hold that at that point of time, he has declined to prosecute. The reason for taking such a stand is not relevant at this stage and need not be enquired into for the purpose of the application for leave. What is relevant is the failure or refusal (1) to take a decision to prosecute or not to prosecute and