Attorney General Of Lagos State V. Ali Hassan (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

The respondent worked as a security guard at Barbington Street, Iyana-Itire, Lagos. A robbery and murder incident occurred near the respondent’s place of work. This led to the arrest of the respondent by the police as one of the suspects. The respondent was taken to the Magistrate Court Ebute-Metta where he was remanded in prison custody.

He stayed in prison custody for eleven years before an application for the enforcement of his fundamental rights was filed at the High Court of Justice of Lagos State (the Court below). The application was granted. The respondent was granted his personal liberty with monetary compensation of N700,000.00 ordered against the appellant which occasioned the present appeal.

The lone issue for determination from the two grounds of appeal contained in the notice of appeal is stated in the appellant’s brief of argument filed on 06-02-15, but deemed properly filed on 11-03-15, as follows-

“Whether the Appellant is liable for the detention of the Respondent who was arrested and detained by the Nigerian Police without proper

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arraignment.”

The appellant referred to Sections 2 (2), 4, 5, 211, 215 of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) and Item 45 of the Exclusive Legislative List thereof and Sections 4 and 23 of the Police Act, CAP P19 to contend that construed literally as should be the case vide Global Excellence Communications Ltd. v. Duke(2007) 7 S.C (pt. 11) 162, Ojokolobo v. Alamu (1987) 3 NWLR (pt. 61) 377 and N.E.W. Ltd v. Denap Ltd. and Anor. (1997) 10 NWLR (pt. 526) 481 at 532, there is clear demarcation between the statutory powers of the police to detect and investigate crimes as well as to arrest and detain accused persons and the constitutional powers of the Attorney General to initiate, take over and even discontinue criminal prosecution; that in the performance of the statutory powers that Nigeria Police are not answerable to the Attorney-General; consequently, notwithstanding the importance of the office of Attorney-General in the administration of criminal justice, it does not necessarily follow that police investigation of a case must lead to the prosecution of the case as to bring in the role of the Attorney-General

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in whose name the prosecution is to be undertaken; that it is necessary for both the police and the office of the Attorney-General to cooperate in such matters as the latter cannot encroach on the statutory powers of the former vide Attorney-General of the Federation v. Ajayi (1996) 5 NWLR (pt. 448) 283 at 290, Sanusi v. Ayoola (1992) 23 NSCC (pt. 111) 420 at 430, Onyekwere v. State (1993) 8 NSCC 250 at 255, Umoera v. C.O.P. (1977) 7 S.C. 13, Nwankwo v. Queen (1959) 4 F.S.C. 274.

It was also submitted that it is in order to bridge the gap between the police and the Attorney-General that Section 74 of the Administration of Criminal Justice Law 2011 (ACJL) provides for the forwarding of the case diary or files by the police to the office of the Attorney-General for legal advice to trigger the prosecutorial powers of the Attorney-General under Section 211 of the 1999 Constitution; that without seeing the case file or diary the Attorney-General cannot proceed to render any prosecutorial service therefore the Court below expected the impossible from the office of the Attorney-General when it held that the appellant as the Attorney-General was imputed with

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constructive knowledge of every remand proceedings in Lagos State which is a practical and administrative impossibility and contrary to the fundamental principle of statutory interpretation that the law does not command the impossible (lex non cogit ad impossibilia) vide the case of Lasun v. Awoyemi (2009) 16 NWLR (pt. 1168) 548.

It was finally contended that having held that the police refused to forward the case file of the matter to the office of the DPP under the Attorney-Generals office for legal advice, the Court below was wrong to hold in its judgment that the appellant was also responsible for the eleven (11) years spent by the respondent on remand in prison custody; and that the appellant was therefore liable for the infraction of the respondents fundamental right to personal liberty; upon which the appellant urged for the appeal to be allowed and that part of the decision of the Court below affecting the appellant be set aside.