Attorney-general Western Nigeria Vs The African Press (1965)
LawGlobal-Hub Lead Judgment Report
The Director of Public Prosecutions, Western Nigeria, initiated in the name of the Attorney-General, Western Nigeria, criminal proceedings against the two respondents in the High Court, Ibadan, by means of an information which he signed personally. The charges against them were laid under the following sections of the Criminal Code of the Region:-
1st Count. – Publishing seditious publication contrary to section 47(t)(c) of the Criminal Code, Cap. 28 Laws of Western Region of Nigeria, 1959.
2nd Count. – Publication of false news with intent to cause fear and alarm or to disturb the public peace contrary to section 54(1) of the Criminal Code, Cap. 28 Laws of Western Region of Nigeria, 1959.
3rd Count. – Publication of defamatory matters contrary to sec. 316 of the Criminal Code, Cap. 28 Laws of Western Region of Nigeria, 1959.
At the close of the case for the prosecution, the defence counsel called no evidence, closed the case for the defence and made his submission to which the Director of Public Prosecutions made a reply.
In a considered judgment the learned judge ruled that the proceedings in respect of the 1st count were null and void, and that count was struck out. In regard to counts 2 and 3, he found the defendants not guilty on each of these and they were acquitted.
The appellant has appealed to this Court against the ruling on the 1st count as well as the order of acquittal on the 2nd and 3rd counts. At the hearing of the appeal before us, however, the appeal on count 2 and that on count 3 were withdrawn or abandoned. We are therefore concerned with the appeal on the 1st count only, namely, the count relating to sec. 47(1)(c) of the Criminal Code of the Western Region of Nigeria, which reads:
“47. (1) Any person who-
(c) prints, publishes, sells, offers for sale, distributes or reproduces seditious publication,
shall guilty of an offence…”
Sec. 48, sub-section (2) reads:-
(2) A person shall not be prosecuted for an offence under section 47 without the written consent of the Director of Public Prosecutions.”
Now, the objection taken before the learned trial judge was that since the enactment of the Criminal Code of the Western Region, the Republican Constitution of 1963 has placed the Director of Public Prosecutions under the Attorney-General (see sec. 47(1) of the Constitution of Western Nigeria), and that the words “Attorney-General” must be substituted for the words “Director of Public Prosecutions” in sub-section (2) of sec. 48 of the Criminal Code; and that as it was not proved that the Attorney- General’s written consent, which is a prerequisite, had been obtained before the prosecution was initiated, the prosecution on the 1st count was null and void.
The attention of the learned judge was drawn to Western Nigeria Legal Notice 293 of 1963 which is as follows:-
“In exercise of the powers conferred upon the Attorney-General of the Region by sub-section (3) of section 47 of the Constitution of Western Nigeria as set out in the Schedule to the Constitution of Western Nigeria Law, 1963, I hereby authorise the Director of Public Prosecutions of the Region, the Deputy Director of Public Prosecutions and all grades of State Counsel in the Department of Public Prosecutions (acting under the immediate direction and control of the Director of Public Prosecutions) to exercise on my behalf and acting under and in accordance with such general or special directions, in writing as I may from time to time issue to the said Director of Public Prosecutions all and sundry the powers conferred upon me as Attorney-General of the Region by sub-section (2) of the said section.”
In his consideration of the points argued before him, the learned judge said as follows:-
“In my opinion, the consent required by section 48 of the Criminal Code is a personal one which must be given in writing by the Attorney-General himself after deciding to institute a prosecution. A decision as to whether or not to prosecute under the section rests, in my view, solely on the Attorney-General.” He continued:-
“Furthermore, the Legal Notice No 293 of 1963 is, on the face of it, an omnibus authorization, and it is in my view wholly inadequate to vest the Director of Public Prosecutions with the powers of the Attorney-General under the section.”
The two amended grounds of appeal argued before us and relating to the 1st count are as follows:-
“1. The learned trial judge misdirected himself in law in holding that “the consent required by section 48 of the Criminal Code is a personal one which must be given in writing by the Attorney-General himself after deciding to institute a prosecution.”
2. The learned trial judge misdirected himself in law in holding that “since the consent of the Attorney-General was not given, the proceedings in respect of count 1 of the indictment are null and void.”
The learned Director of Public Prosecutions argued these grounds together on two bases; firstly, on the basis that the Attorney- General could not be substituted for the Director of Public Prosecutions In section 48(2) of the Criminal Code without an adaptation order having been made by the Governor of the Region under section 156(2) of the Constitution of the Federation; and secondly, on the basis that no adaptation order was necessary.
We hold the view, In deciding the Issue before us, that no adaptation order is necessary, and we propose to refer shortly to the historical background of the matter. In 1958 the office of the Director of Public Prosecutions was created, and he was made independent of the Attorney-General, whose office is of a political nature. On the creation of the office of Director of Public prosecutions a transfer of powers in respect of the Criminal Code to the Director of Public Prosecutions followed.
The effect, so far as sec. 48 (2) of the Criminal Code of Western Nigeria and such like provisions are concerned, was to vest the Director of Public Prosecutions with powers of initiating and controlling prosecutions; and his consent was needed before a prosecution under any such provisions was initiated. Section 47 of the new Constitution (1963) of Western Nigeria under the Republic placed the Director of Public Prosecutions under the control of the Attorney-General, on whom it conferred all powers connected with criminal proceedings, thus restoring to him the powers he possessed before the changes of 1958. The effect is that sec. 48(2) of the Criminal Code of the Western Region vests the power in the Attorney-General to give his consent, or withhold it, to prosecution for an offence under sec. 47 of the Code. But it was realized by the framers of the Constitution that it will be a burden on the Attorney-General If, with his multifarious duties, he had to initiate and control all prosecutions.
Provisions were therefore made for the exercise of his constitutional powers in criminal proceedings through the Director of Public Prosecutions and his department, In sub- section (3) of section 47 of the 1963 Constitution of Western Nigeria, which we shall cite with sub-sections (1), (2) and (6) for the sake of clarity. Sec. 47 (1), (2), (3) and (6) of the Constitution (W.N.) are as follows:-
“(1)There shall be a Director of Public Prosecutions for the Region, whose office shall be an office in the public service of the Region and, without prejudice to the provisions of this Constitution relating to the Public Service Commission of the Region, an office in the department of government for which responsibility is assigned to the Attorney-General of the Region.
(2) The Attorney-General of the Region shall have power in any case in which he considers it desirable so to do –
(a) to institute and undertake criminal proceedings against any person before any court of law in the Region in respect of any offence created by or under any Regional law[;]
(b) to take over and continue any such criminal proceedings that may have been Instituted by any other person or authority; and
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.(3) The powers of the Attorney-General of the Region under sub-section
(2) of this section may be exercised by him in person and through the Director of Public Prosecutions of the Region acting under and in accordance with the general or special instructions of the Attorney-General and through other officers of the department mentioned In sub-section (1) of this section acting under and In accordance with such Instructions….
(6) In the exercise of the powers conferred upon him by this section the Attorney-General of the Region shall not be subject to the direction or control of any other person or authority.”
The powers conferred upon the Attorney-General under this sub- section of sec. 47 of the Constitution were exercised by him under Legal Notice 293 of 1963 (supra) which authorised the Director of Public Prosecutions and others to exercise certain powers he conferred upon them. These powers include the institution of criminal proceedings.
For the respondents it was submitted that the power to institute proceedings differs from the duty of giving consent; that the latter can only be personal and cannot be delegated. In our view this submission is based on a misunderstanding. The Attorney- General may exercise the power to institute criminal proceedings which the Constitution of the Region gives him in any case in which he considers it desirable to do so, and in exercising it he is not subject to the control of any other person or authority. Certain sections of the Criminal Code or other Regional laws make the consent of some person or authority necessary for the institution of a prosecution, but where that person or authority is someone other than the Attorney-General these provisions must be construed as not applying to him, in order to avoid Inconsistency with the Constitution, and where it is the Attorney-General it would be “ludicrous” to require that in addition to signing an information or complaint he should file a document consenting to his doing so: R. v. Zik’s Press Ltd. (1974) 12 W.A.C.A. 110.
Since section 47 of the Constitution authorises the Attorney-General to exercise his constitutional powers in person or through the Director of Public Prosecutions or other officers, a prosecution instituted by the Director of Public Prosecutions ranks In law as if it had been instituted by the Attorney General personally and no further evidence of consent is necessary. The question whether the Director of Public Prosecutions can validly consent on behalf of the Attorney- General to the institution of a prosecution by someone else does not arise in these proceedings.
The question whether in instituting these proceedings the Director of Public Prosecutions was acting in accordance with any instruction he may have received from the Attorney-General has no bearing on the question whether the proceedings were validly instituted and is not one into which the Court can inquire. Generally, there is no need for a judge to know what instructions the Attorney-General has given to the Director of Public Prosecutions in regard to the conduct of a case and the courts must normally take it for granted that if the Director of Public Prosecutions begins a prosecution under section 47 of the Criminal Code, he has done so in accordance with the instructions given him by the Attorney-General, for subsection (9) of section 47 of the Constitution of Western Nigeria provides that:-
“(9) Except at the instance of the Attorney-General of the Region, the question whether he has given any instructions in pursuance of this section, or what the instructions were, shall not be enquired into by any court of law.”
This appeal will therefore be allowed. The case will be remitted to the High Court, Ibadan, before the trial judge to give a decision on the 1st count of the charge.
Other Citation: (1965) LCN/1290(SC)