Alhaji Salihu Wukari Sambo & Anor V. Capt. Yahaya Douglas Ndatse (Rtd) & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SOTONYE DENTON-WEST, J.C.A., (Delivering the Leading Judgment)

This is an appeal against the ruling of Hon. Justice Emmanuel A. Garba of Taraba State High Court delivered on 15th September, 2009.

The Appellants who were the complainants brought an application for leave to prefer a charge against the Respondents who were the accused persons at the trial court. The leave was granted. Thereafter the Respondents filed a motion on Notice seeking the following orders.

1. An order of the court setting aside its order of 12th November, 2008 which granted leave to the Appellants to prefer charges against the Respondents.
2. Further order quashing all the nine counts on the charge sheet.
3. An order striking out the entire case of the Appellants for being incompetent.

The trial lower court granted the prayers as contained in the motion and struck out the case. Hence this appeal and cross appeal by the Appellants and Respondents respectively.

The Appellants in their joint brief of argument dated 15th September, 2011 filed on 19th September, 2011 and deemed properly filed on 13th March, 2012 submitted only one issue for determination and that is:-

Whether the learned trial judge was justified in law when he held that the Appellants lack the locus standi to initiate the criminal proceedings against the Respondents.

The Respondents in their own joint brief of argument dated 29th May, 2012 and deemed properly filed and served on 27th June, 2012 formulated three (3) issues for determination as follows:-

1. Whether the learned trial judge was right to have relied on the case of FRN V. Osahon to hold that the Appellants (complainants) as private individual have the right to institute the complaint without a fiat because Section 185 of the Criminal Procedure Code is superseded by Section 211(1) (b) and (c) of the 1999 Constitution (Ground 1 of the Notice of Cross Appeal).
2. Whether the proof of evidence filed before the trial court by the Appellants part of which is to the effect that the police refused to investigate their complaint coupled with the application for leave to initiate the Criminal Proceedings under Section 185 (b) of the Criminal Procedure Code do not amount to fraudulent misrepresentation (ground 11 of the Notice of Cross Appeal).
3. Whether the learned trial judge’s conclusion to the effect that it will be absurd to hold that once a case has been reported to the police, nothing can be done even when it is clear that the police deliberately refused to prosecute without a justifiable reason, has not adversely affected the Respondents’ case (ground 111 of the Notice of Cross Appeal).

For the purposes of the main appeal, Appellant’s sole issue will be considered, that is:-

Whether the learned trial judge was justified in law when he held that the Appellants lack the locus standi to initiate the criminal proceedings against the Respondents.

The reason is because the above sole issue as it appears to me covers and determines the point in contention in the main appeal.

The Appellant submitted that by the combined effect of Section 211(1) (b) & (c) of the Constitution of the Federal Republic of Nigeria, 1999 and Section 143 (d) and (e) of the Criminal Procedure Code (CPC) Cap 39 Laws of Taraba State of Nigeria, 1997, the Appellants have the locus standi to initiate the direct Criminal complaint against the Respondents and they need not show any special relationship with the deceased persons or demonstrate an interest more substantial than that of the general public to be enabled in that behalf as wrongly opined by the learned trial Judge.

It was also argued that the learned trial Judge appeared to have treated on pages 151 and 152 of the records, the issue of locus standi in the Criminal proceedings as if it were a civil suit, and not regulated by a clear provision of statutes or in any case as if same was regulated by the doctrine of common law.

Moreso, that it is not in doubt that the doctrine of locus standi is generally regulated by the principles of common law, but it is the law that where the issue of locus standi in respect of a subject matter is regulated by a statute, the principles of common law on the subject may have by implication been suspended from regulating the subject. The case of M.C.S. (NIG) Ltd/GTE V. Adeonkin Records (2007) ALL FWLR (Pt. 391) C.A at pp. 1637 paras C – D was referred to where this court herd inter alia:-

“Where a statute confers on a plaintiff the right to sue, a court of law has no jurisdiction to deny him of the standing to sue. A statutory right of a Plaintiff to sue abrogates a common law principle to the contrary, that is not to sue”.