Alhaji Mohammed O. Atta V. Commissioner of Police, Kogi State (2003)
LawGlobal-Hub Lead Judgment Report
ODUYEMI, J.C.A.
As required by rules of court, the appellant by a motion ex-parte filed in the Lokoja Judicial Division of the High Court of Kogi State on 27th April, 2002, sought leave of court to apply for an order of mandamus directed to the respondent herein seeking the following reliefs:
“a. To apply for an order of mandamus compelling the Kogi State Commissioner of Police to prosecute Alhaji Ado Ibrahim the Ohinoyi of Ebira land together with Abdulkadir Apollo Atta who sometime in the month of January 2000, forcefully and without permission broke into the aforesaid applicant’s premises and made use of same.
b. The prosecution of both Alhaji Ado Ibrahim, the Ohinoyi of Ebira land and Abdulkadir Apollo Atta should be carried out immediately by the respondent as it is now over four calendar months that the applicant lodged with the police, the complaint of criminal trespass, mischief and intimidation.”
The application was accompanied by an affidavit in support sworn to by the applicant/appellant as well as a statement and grounds of the application together with the following exhibits-
Exhibit A – a letter dated 20th November, 1999 Ref. No. HM/AI/AB/263/99 addressed by His Majesty, King Ado Ibrahim, Atta III Ohinoyi of Ebira land to the applicant/appellant.
Exhibit B – a letter dated 24th November, 1999 addressed by the applicant/appellant in response to exhibit A – copied to, inter alia, Dr. A. I.Atta – Head of Atta’s family.
Exhibit C – a letter dated 29th December, 1999 addressed by Dr. A. I. Atta to H.R.H. Alhaji Ado Ibrahim, the Ohinoyi of Ebira land and copied to the respondent herein; and
Exhibit D – a letter dated 10th January, 2000 addressed by the applicant/appellant to the respondent herein headed-
“Re: Complaint of criminal trespass, mischief and intimidation against H.R.H. Alhaji Ado Ibrahim, the Ohinoyi of Ebira land and one Abdulkadir Apollo Atta.”
The application ex-parte for leave was moved before the court on 15th May, 2000. Leave was granted.
Thereafter, appellant served on the respondent the required motion on notice as well as copies of the accompanying process and exhibits.
On its part, the respondent filed on 8th January, 2001, a counter affidavit sworn to by an official of the State Ministry of Justice in the office of the Attorney-General of Kogi State in opposition to the application for the grant of the order of mandamus.
Counsel to both parties addressed the court on the application.
In a considered ruling, delivered on 7th August, 2001, the learned trial Judge refused to grant the order of mandamus, prayed for and dismissed the application.
The applicant being aggrieved by the decision of the lower court to grant the order of mandamus has appealed to this court.
In the notice of appeal, the appellant filed 3 grounds of appeal which, without their respective particulars read:
“Ground one
Error in law
The learned trial Judge erred in law when he went beyond his jurisdiction in adjudicating upon prayers that were not canvassed before the Honourable Court.
Ground two
The learned trial Judge acted ultra vires his judicial function when he usurped the function of the police to determine and conclude investigation and, thus, coming to the conclusion that the allegation raised is civil and not criminal in nature.
Ground three
The ruling of the learned trial Judge is against the weight of evidence.”
However, at the oral hearing of the appeal in this court, learned counsel for the appellant indicated that no issue was formulated in the appellant’s brief in respect of the 1st ground of appeal which has been abandoned. Ground 1 is accordingly struck out.
In effect; the appellant formulated two issues for determination in this appeal in his brief; thus:
“1. Whether from the facts of this case and given the uncontradicted evidence of the appellant, the learned trial Judge was right in holding that the appellant’s application for an order of mandamus is misconceived?.
- Whether or not the appellant met with the requirement entitling him to the grant of an order of mandamus, by the trial lower court?.”
For the respondent, two issues were formulated in the respondent’s brief; thus:
“1. Whether from the overall facts, figures and circumstances of this case, this matter can be said to be a criminal one warranting police investigation and subsequent criminal prosecution of Mr. Abdulkadir Apollo Atta and Alhaji Ado Ibrahim, the Ohinoyi of Ebira land?. (This issue relates to grounds 1 and 2 of the grounds of appeal).
- Whether having regard to the contents of affidavit in support of applicant/appellant’s motion dated 15/05/2000 and the annexed exhibits A, B, C and D and law, there is sufficient basis to disturb the judgment of the trial court?. (This issue related to ground 3 of the grounds of appeal).”
Following the indication by the learned counsel for the appellant that he had abandoned ground 1 in the notice of appeal, learned counsel for the respondent also indicated at the oral hearing in this court, that she abandoned all arguments relating to ground 1 in the notice of appeal contained in issue 1 in the respondent’s brief which incidentally was by leave of court deemed duly filed on 7th November, 2002 the day the matter was heard in this court.
I am of the opinion that the two issues respectively formulated by both the appellant and the respondent in their briefs from the two remaining grounds of appeal can be adequately encompassed in only one issue thus: i.e.,
“Whether the lower court was justified in its refusal to grant an order of mandamus in the circumstances of this case?.”
In the event I shall resolve the appeal on this sole issue.
The brief of appellant, having quoted extensively from the affidavit in support of the appellant’s application to the lower court, the grounds upon which relief was sought as well as paragraph 3(a), (b), (c), (d) and (e) of respondent’s counter-affidavit before the lower court contended that the learned trial Judge was wrong to have found in favour of the respondent was justified in its decision not to take action on the matter because the complaint of the applicant related to a dispute involving family property of a purely civil nature and in which the police would not wish to be involved in a partisan nature.
It is the further contention of the appellant that it was a misconception on the part of the lower court of the true nature of the applicant’s complaint before it in that the lower court placed undue importance on the fact that the crux of the complaint arose out of a dispute relating to family property, that is jointly owned by the Atta family and to have been silent on the issue whether or not the act of the two members of the Atta family complained about in forcibly breaking/damaging the appellant’s door and entering his residence is an act of mischief – a crime.
Reliance is place upon:
(i) Broadline Enterprises Ltd. v. Monterey Maritime and Ors. (1995) 9 NWLR (Pt. 417) 1, (1995) 10 SCNJ 1 at 43;
(ii) Eliochin (Nigeria) Ltd. & 2 Ors. v. Victor Ngozi Mbadiwe (1986) 1 NWLR (Pt. 14) 47, (1986) 1 SC 99 at 130;
(iii) Sections 326 and 342 of the Penal Code, Cap. 89, Laws of Northern Nigeria, 1963;
(iv) Section 4 of the Police Act, Cap. 359, LFN, 1990;
(v) Queen: Ex parte Chief Lewis Ekpenga v. Chief Ideliahan Ozogula II (1962) 1 All NLR (Pt. 2) 265.
It is accordingly contended that the trial court has drawn a wrong conclusion on the facts and that this court should reverse that finding.
Reliance is further placed on:
(i) Dare Kada v. The State (1991) 8 NWLR (Pt. 208) 134, (1991) 11 SCNJ 19;
(ii) Union Bank of Nigeria Ltd. v. Professor A. O. Ozigi (1994) 3 NWLR (Pt. 333) 385, (1994) 3 SCNJ 42;
(iii) R. Lauwer Import-Export v. Jozebson Industries Co. Ltd. (1998) 9 NWLR (Pt. 83) 429, (1988) 7 SC (Pt. 111) 26.
It is the further contention of appellant that the applicant by the affidavit evidence deposed to, (which it contends has not been controverted in the counter-affidavit evidence of the respondent) has satisfied the conditions which should have guided the lower court in granting the order of mandamus. According to the applicant, allegation by the applicant of forcible damage, breaking and entry into another man’s apartment is by nature criminal; which ipso facto should cast upon the respondent a duty to arrest, investigate and prosecute the alleged offenders and this should have formed the basis for the lower court granting the order of mandamus sought for.
For the respondent, it is submitted thus:
The evidence disclosed by the affidavit in support of applicant/appellant’s motion and by exhibits A, B, C and D annexed thereto show that the living apartment together with its balcony of which the right to the use thereof is in dispute between the applicant/appellant and those other members of the Atta family of whose conduct he has complained to the respondent is part of the larger estate of the late Alhaji Ibrahim Chogudo the Atta II of Ebira land which he left behind when he died intestate sometime in 1964.
That the learned trial Judge was justified in his finding that the nature of the dispute for resolution by the appropriate civil remedies and not one for which the machinery of the criminal law as envisaged in sections 4 and 6 of the Police Act, Cap. 359, L.F.N. 1990 should be employed.
That all that the applicant/appellant desires is to use the coercive powers of the respondent under the public law to achieve his own ends in a private dispute.
Reliance is placed on:
(i) Layanju v. Emmanuel Araoye (1961) All NLR Vol. 2 p. 80, (1961) 1 SCNLR 416;
(ii) Oragbaide v. Onitiju (1962) 1 All NLR 32, (1962) 1 SCNLR 70.
It is also the contention of respondent that even in connection with its statutory duties under sections 4 and 6 of the Police Act, the respondent has a discretion whether it would investigate and/or prosecute in respect of the complaint of the appellant and that it is the law that the order of mandamus will not lie to compel the respondent to act in a particular way, as is being sought in the application, once it is shown that the respondent has in fact exercised its discretion.
It is the further contention of respondent that as the order of mandamus is a discretionary one, once the lower court has exercised its discretion, this court should not interfere with the exercise by the lower court of its discretion since appellant has not shown that that exercise was perverse or runs counter to the evidence or that it has occasioned a miscarriage of justice.
Reliance is placed on:
(i) Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) 177, (2000) 2 SCNQR 285;
(ii) Oyekanmi v. National Electric Power Authority (2000) 15 NWLR (Pt. 690) 414, (2000) 4 SCNQR 175;
(iii) Eze v. Attorney-General of Rivers State (2001) 18 NWLR (Pt. 746) 524, (2001) 12 SCNJ 35;
(iv) State v. Ajie (2000) 11 NWLR (Pt. 678) 434, (2000) 7 SCNJ 1.
It is the primary contention of appellant that the grant by the lower court of leave to the appellant to apply by motion on notice for the order of mandamus showing that applicant must have made out a prima facie case of failure on the part of the respondent to carry out its statutory duty. It is the further contention of appellant that apart from the contention of respondent that the appellant’s complaint is rather civil than criminal, the respondent did not controvert the facts alleged by the applicant and that as such the failure of the learned Judge to consider the criminal nature of the complaint and accordingly make an order of mandamus to compel the respondent to investigate the matter and carry out a prosecution of the members of the family against whom the appellant has complained was erroneous.
In effect, it appears to me that the contention of the appellant is that once the facts in his complaint are established, the respondent has no option but to prosecute those against whom appellant has lodged a complaint; that therefore the order of mandamus must issue.
With respect, I am of the humble opinion that appellant’s argument is faulty for the following reasons:
(a) Leave to apply for the order was made ex-parte that is before the respondent’s version was heard.
The affidavit of the appellant averred among other things in paragraphs 12, 13 and 14 thus:
“12. That I know as a fact that I promptly reported this incident at the Divisional Police Office, Okene and apart from this, I made a complaint in writing to the respondent sometime in the month of January, 2000. A copy of the complaint to the respondent is herewith annexed and marked exhibit ‘D’.
- That I know as a fact that no step has so far been taken by the police with respect to my complaint.
- That I know as a fact that the respondent has not deemed it fit to question Alhaji Ado Ibrahim with respect to this dastardly act.”
However, upon service of the processes on the respondent, the respondent, through an official in the office of the Attorney-General of Kogi State deposed to a counter-affidavit paragraphs 3 and 4 of which read thus:
“3. That J. I. Makun, Esq., counsel in the Attorney-General’s Chambers, Lokoja handling this matter informed me in the office and I verily believe her as follows:
(a) That J. I. Makun, Esq. has read the affidavit of Mohammed O. Atta in support of the applicant’s motion.
(b) That the police is not denying the fact that the office was contacted on the matter.
(c) That the entire estate (i.e., including the portion or apartment in dispute) all constitutes family property.
(d) That police would not want to be dragged into family matters.
(e) That police did not take action because the case is purely civil in nature.
- That it will not be in the interest of justice to grant this application.”
My view on reading the counter-affidavit is that the respondent admits receipt of the complaint but having regard to the contents, he took a decision (emphasis by me) that no further steps need be taken to investigate the matter or prosecute those against whom the complaint was lodged.
It is this ‘decision’ that the respondent had to justify before the court of trial or else an order of mandamus would issue in favour of the applicant.
It is trite that the court before whom an application for mandamus is made has a discretion to grant or refuse it.
It is also trite that a court called upon to exercise its discretion in a matter before it, must exercise that discretion judicially and judiciously; otherwise an appellate court would interfere with such exercise of discretion.
A court may refuse to make an order of mandamus:
(i) unless it has been shown that a distinct demand for performance of the duty has been made and that the
demand has deliberately not been complied with;
(ii) where there is undue delay;
(iii) where the motives of the applicant are unreasonable.
See Per OBASEKI, J.S.C. (as he then was) in Chief Gani Fawehinmi v. Col. Halilu Akilu and Anor. (1987) 4 NWLR (Pt. 67) 797, (1987) 9-11 and 12 SC 36 at 186.
The respondent is not contesting (i) and (ii) above but it appears to me that the respondent is hinging its defence upon ground (iii) and the legitimate exercise of its discretion in that regard.
In addition to the above, it is established with regard to the law on the grant of mandamus as follows:
(i) Mandamus will not lie to order admission or restoration to an office that is essentially of a private character nor, in general, will it lie to resolve any private dispute- R. v. Wheeler (1735) Cas.t. Hard. 99; Eng. Reports Vol. 95 Kings Bench p. 61;
(ii) Courts, tribunals and administrative bodies, in general, have a duty to exercise their statutory discretions one way or the other when the circumstances calling for the exercise of those discretions arise but are not normally under any duty to determine that matter or exercise such discretion in a particular way, and mandamus will not therefore issue for such purpose.
R. v. Queen London JJ. (1895) 1 Q.B. 214, 616.
(iii) The police retain very considerable freedom to formulate and implement general policies and to decide what to do in a particular case without incurring the risk of judicial intervention.
R. v. Metropolitan Police Commissioner ex p. Blackburn (1968) 2 Q.B. 118,136,139.
See also De Smith’s-Judicial Review of Administrative Action, 4th Edition, J. M. Evans at pp. 87,540,543 and 549Now, let us examine the facts in this case in the light of the law. Perhaps, in addition to the portions of the affidavit already quoted in this judgment, portions of the exhibits annexed to the applicant/appellant may be quoted:
Exhibit A – The letter Ref. No. HM/A1/AB/263 dated 20th November, 1999 from H. M. King Ado Ibrahim Atta III Ohinoyi of Ebira land to the applicant/appellant:
“HIS MAJESTY
KING ADO IBRAIHIM
ATTA III OF EBIRA LAND
Our Ref. HM/A1/AB/263 ‘Confidential’
November 20,1999
Alhaji Mahmoud O. Atta,
C/o Atta’s Palace,
Okene,
Kogi State.
Dear Sir,
I convey my greetings and best wishes.
I have often requested for the keys to the front structure of the palace when I have to make any speech during public ceremonies such as the Sallah Day, etc. We all recollect with cherished memory that the structure was used by our late dear father, Alhaji Ibrahim, Atta 11 of Ebira land for such public functions and also as a forum for conferences.
It is my humble opinion that the exclusive use to which the two floors of the structure are now put with partitions for residential and entertainment purposes, was not meant to be. Palaces as monarchical institutions are often detached from such mundane uses. However, we all understand that the royal ceremonial use of the structure eluded our dear family for over forty years until it pleased Allah to restore us to our heritage in 1997. That restoration also calls for the restoration of our dignity and the veritable reinstitutionalisation of our heritage.
I shall address the Head of the family on the palace major renovation and administration, and the matter of illegal structures that should be dealt with. Meanwhile, I am commencing the renovation of conspicuous areas, with emphasis on sanitation, security and functional use of available structures. I am therefore requesting that you kindly release the keys to the front structure behind, as you return to Kaduna, in order to enable the commencement of work.”
Exhibit B – The appellant’s reply dated 24th November, 1999:
“M. O. ATTA & SONS NIG. LTD.
(INCORPORATED IN NIGERIA) HEAD OFFICE
I C 3 Ibrahim Taiwo Road,
P. O. Box 268, Kaduna.
Tel. 062-243363, 210278
Our Ref… Your Ref … Date 24th Nov., 1999
His Highness Alhaji Ado Ibrahim,
The Ohinoyi of Ebira land
Okene, Kogi State.
My dear Brother,
Compliment’s of the season. I wish to acknowledge receipt of your letter reference No. HM/AI/AB/263/99 of November 20th, 1999 which makes very interesting reading and I was highly amused.
I am surprised to read in your letter under reference that major renovation is to be carried out in our late father’s palace. It is well known to your humble self that over the years, it is the family as a whole and NOT individuals that take decision with regard to carrying out any form of construction and/or renovation in the said premises. Apart from the above fact, I have for some 35 years now been residing in the stated premises and NOT even once have I been queried by the family in this regard. I stand to be so corrected. Both present (Dr. Abdulmumuni Atta) and the past heads (late Alhaji Abdulmalik and Abdulazeez Atta) of the family approved of my stay in the premises.
I learnt that you want to permanently retain part of the building I am occupying, for making your Sallah speeches.
May I remind you that our father’s palace is NOT AZAD’s PALACE. You should know that a palace has been built for the Ohinoyi of Ebira land and that is the right place for you to make your official speeches. Please do not drag our father’s palace into ridicule and also do not expose it to any kind of mishap. Please consider above as a very serious advice.
Take it that I have been staying in a part of our father’s building with permission which I have NOT, repeat, NOT made my own property. This leads me to simple question to you and that is, do you believe that you have more right to our father’s property than myself?.
I conclude by stating my right to litigation against any person who may interfere with my property.”
It is to be noted that both exhibits were annexed to exhibit D, i.e., the letter of complaint of the applicant to the respondent dated 10th January, 2000.
In the ruling of the learned trial Judge, the subject of this appeal, his Lordship in upholding the submission of the learned counsel to the respondent on the property in dispute said:
“In the first place, I refer to paragraphs 3, 6-8, 10 of the affidavit and exhibit C annexed thereto. And also paragraph 3c. All these clearly show that this is essentially a family dispute. Both parties agree that the Atta’s palace and compound belonged to all the children left by the late Atta of Ebira land, Alhaji Ibrahim Chogudo. That is to say, initially, there was a jointly inherited tenancy before part of it was allegedly allowed to be used by the applicant.
Paragraph 11 alleges that in January, 2000, Ado Ibrahim ordered or ‘used’ Alhaji Abdulkadir Apollo Atta to forcibly break into his apartment, replaced its security key and deprived him entry. In paragraph 10, and exhibit C, the applicant calls this an act of lawlessness.”
Dr. A. I. Atta, the writer of exhibit C said:
”The palace belonged to all of us and no one of us has more right or power over the compound and palace than the other.”
In my humble view, I hold that those acts are more civil than criminal, irrespective of what the learned counsel calls them. For saying this, I rely on page 2 of exhibit B and I quote some relevant parts:
“‘Take it that I have been staying in a part of our father’s building with permission which I have NOT, repeat, NOT made my own property. This leads me to simple question to you and that is, do you believe that you have more right to our father’s property than myself?
In my considered opinion, this matter is CIVIL, and the applicant has not made the building his personal property; and so it is family issue. In land law or law of tort, it is trite that actual possession, as in this case, however wrongful is sufficient to entitle the possessor to claim against the intruder or trespasser; that is a claim.”
In my view, though differently expressed by the learned trial Judge, his evaluation is that the subject matter of the dispute concerned the private rights of the appellant/applicant in respect of family property and not a criminal issue per se. I am in full agreement and I do not wish to interfere with that correct finding of fact.
It now remains to see if the complaint by the appellant of inaction by the respondent was one in respect of which the lower court should have granted the order of mandamus to compel the respondent to take action.
In this connection, it is necessary to look at the provisions of sections 4, 6 and 23 of the Police Act, Cap. 359, LFN, 1990.
Section 4 reads:
“4. The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or without Nigeria as may be required by them by, or under the authority of this or any other Act…”
Section 6 reads:
“6. The force shall be under the command of the Inspector General, and the contingents of the force stationed in a state shall, subject to the authority of the Inspector General, be under the command of the Commissioner of that State”
Section 23 reads:
“23. Subject to the provisions of sections 160 and 191 of the Constitution of the Federal Republic of Nigeria (which relate to the power of the Attorney-General of the Federation and of a State to institute and undertake, take over and continue or discontinue criminal proceedings against any person before any court of law in Nigeria), any police officer may conduct in person all prosecutions before any court whether or not the information or complaint is laid in his name.”
I have already stated in this judgment that it is clear that the subject matter of the complaint for which the appellant wanted an order of mandamus to issue by the court is in pursuit of his own private dispute, a dispute in respect of which he himself is fully conscious of his right to fight in the courts without involving the respondent – See the last paragraph of his letter – Exhibit B.
It has been shown in this judgment that mandamus will not issue to resolve an applicant’s private dispute – See R. v. Wheeler (supra).
In my view, it is obvious that the motive of the applicant/appellant in lodging the complaint to the respondent and pursuing the matter to the stage of an application for an order of mandamus is unreasonable.
I hold therefore that the learned trial Judge was right in exercising the discretion reposed in him to refuse the application and in upholding the decision of the respondent not to carry out further investigation’s besides the affidavit and exhibit’s in its possession nor to prosecute on the complaint.
In the brief of the appellant, learned counsel has cited with relish a passage in the judgment of Aniagolu, J.S.C. (as he then was) in Elochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47, (1986) 1 NSCC 42 in which the Supreme Court expressed the opinion that:
“The laws of all civilised nations have always frowned at self help if for no other reason than that they engender breaches of the peace.”
What we have not been told in the appellant’s brief is that although the facts in the case in that appeal, are not too dissimilar from the facts of the case in this appeal, (in that appeal, the respondent was alleged to have wrongfully entered into the premises during the period of the tenancy, and while the tenants were away from the country and forcibly removed the properties of the occupants), the appellants pursed their remedy in the tort of trespass against the landlord without asking for mandamus to compel the Commissioner of Police in Lagos State to fight their cause for them in a criminal action.
As I stated earlier in this judgment, the last paragraph of the appellant in exhibit B shows that the appellant is not ignorant of his appropriate civil remedy in law.
Mandamus has always been regarded as an extraordinary, residuary and “suppletory” remedy to be granted only when there is no other means of obtaining justice. Even though all the other requirements for securing the remedy have been satisfied by the applicant, the court will decline to exercise its discretion in his favour if a specific alternative remedy equally convenient, beneficial and effectual is available.
See (i) R. v. Canterbury (Archbishop)(18 12) 15 East 117, 136;
(ii) R. v. Inland Revenue Commissioners, Re Nathan (1884) 12 Q.B.D. 461, 478-9;
(iii) R. v. Leicester Guardians (1899) 2 Q.B. 632, 639;
(iv) De Smith (supra) at p. 561.
I hold that the respondent was in order in the manner he has exercised his discretion in the circumstances of this case, and that the lower court judicially and judiciously exercised its discretion to refuse to grant an order of mandamus.
I need point out one other aspect of this case which makes this appeal an exercise in futility.
I have already observed in this judgment that the counter affidavit of the respondent was sworn to by officials of the office of the Attorney-General of Kogi State, i.e. The Kogi State Ministry of Justice. It must be presumed that the respondent is speaking through the mouth of the Attorney-General of Kogi State and its authorised officials that its decision not to prosecute has the authority of the said Attorney-General by the combined operation of section 23 of the Police Act quoted supra and S. 211 of the Constitution of the Federal Republic of Nigeria (formerly S. 191 of the 1979 Constitution) which reads:
“211 (1) The Attorney-General of a State shall have power
(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court-martial in respect of any offence created by or under any law of the House of Assembly;
(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
(2) The powers conferred upon the Attorney-General of a State under subsection (1) of this section may be exercised by him in person or through officers of his department.
(3) In exercising his powers under this section, the Attorney-General of a State shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.”
Cases are replete as authority for the proposition that in the performance of the duties imposed by this section of the Constitution on the Attorney-General, the courts shall not review the decision of the Attorney-General in the manner in which the Attorney-General has exercised his discretion- See e.g. Chief Gani Fawehinmi v. Col. Halilu Akilu & Anor. (supra) at pp. 173-175.
In the circumstance of this case, it is apparent that although the application is against the respondent, in point of fact, the decision not to investigate further in respect of the complaint or to prosecute can safely be said to be on the authority of the Attorney-General of Kogi State.
In the event, I am firmly of the view that in the circumstances of this case, the lower court was justified in its decision to refuse an order of mandamus.
It was a decision judicially and judiciously exercised.
I have no reason to interfere.
Accordingly, I resolve the sole issue in this appeal in favour of the respondent.
I dismiss the appeal as lacking in merit.
I award costs of N7,500 in favour of the respondent.
Other Citations: (2003)LCN/1337(CA)