F.O.M. Atake V. Chief Nelson Asigboro Afejuku (1994)

LawGlobal-Hub Lead Judgment Report

BELLO, C.J.N.

The Complainant was a judicial officer as a Judge of the High Court of the former Bendel State. He retired as such on 30th September, 1977. On the 11th of April, 1990, he instituted in the High Court of Lagos State a private prosecution against the defendant upon five charges of publication of defamatory matters of him in the Vanguard Newspaper in its issue of 17th of February, 1990 and thereby committed an offence in respect of each charge contrary to section 375 of the Criminal Code of Lagos State.

Before the trial of the case, the defendant raised a preliminary objection that having regard to the decision in Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt.102)122, the complainant had no locus standi to institute criminal proceedings in Lagos against the defendant by way of private prosecution. Also, suo motu Kessington J. before whom the preliminary objection was taken raised another preliminary issue on the interpretation of section 256(2) of the Constitution of the Federal Republic of Nigeria 1979 as to whether the Complainant, being a retired judicial officer, was entitled to conduct the prosecution of the case in person. After having heard the arguments of counsel for the parties on the two preliminary matters, the Judge in his ruling dismissed the preliminary objection of the defendant but held that by virtue of section 256(2) of the Constitution the Complainant could initiate the case but was barred from prosecuting it. He struck out the case on this latter ground.

Both parties were not satisfied with the ruling. The Complainant appealed to the Court of Appeal against the order striking out his case on the ground of the constitutional issue while the defendant cross-appealed against the dismissal of his preliminary objection.

After the parties had filed their briefs in the Court of Appeal but before the hearing of the appeal, the Complainant applied to that Court requesting it to refer the constitutional issues and the attendant question of locus standi raised in the appeal to this Court for decision. In accordance with the decision of this Court in Adesanya v. President of Nigeria (1981) N.S.C.C. 146, the Court of Appeal did not hear and determine the appeal. It granted the request and on the facts of the case, which I had already stated, referred the following questions to this court for decision under section 259(3) of the Constitution which provides:-

(3) Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Court of Appeal and the court is of opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests refer the question to the Supreme Court which shall give its decision upon the question and give such directions to the Court of Appeal as it deems appropriate.

The questions referred are as follows:-

(A) Does section 256(2) of the Constitution of the Federal Republic of Nigeria 1979 bar a judicial officer who has ceased to be one from appearing before a Court or Tribunal to conduct in person a case to which he is a party (in the instant case a complainant in a criminal case).

(B) If it does, and the judicial officer who has ceased to be one has already appeared before the Court to conduct in person a case in which he is a party is it a proper application of section 256(2) for the Judge before the case is being heard to strike out the entire suit-

(i) at all,

(ii) Without giving the retired Judge an opportunity to brief counsel to conduct the case on his behalf.

(C) Does section 340(2) of the Criminal Procedure Law of Lagos State Cap. 32 Vol.2 Laws of Lagos State 1973 as amended, apply to all offences as implied in the judgment of Karibi- Whyte, J.S.C. or to indictable offences only as stated in the judgment of Bello, C.J.N in Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) page. 122.

Both parties filed briefs in this Court and emphasised the salient points by oral argument at the hearing of the reference. In respect of question No.6(A), the Complainant contended that Kessington J. had erred in law when he held that the Complainant, being a retired Judge, could not conduct and prosecute the case in

person because of the provision of section 256(2) of the Constitution. He argued that the subsection read with the definition of ‘Legal Practitioner’ under section 24 of the Legal Practitioners Act 1975 only precluded a retired Judge from appearing and acting as a legal practitioner in a court of law and it did not bar him, the Complainant, from conducting and prosecuting personally the case of which he was party.