Col. Halilu Akilu & Anor V. Chief Gani Fawehinmi (1989)

LawGlobal-Hub Lead Judgment Report

OGUNDERE, J.C.A.

For a proper understanding of this appeal, it is necessary to give a synopsis of events before the ruling of Agoro, J., at the Lagos High Court dated 8th April, 1988, now appealed. Chief Fawehinmi, the applicant, by a letter dated 3rd November, 1986, to which he annexed an Information and Proof of Evidence, requested the Attorney-General, Lagos State to prosecute Col. Halilu Akilu and Lt. Col. A.K. Togun for the murder of and conspiracy to murder Dele Giwa. If the Attorney-General refused, then the information should be so endorsed to enable him prosecute for the offences. On the same day the applicant filed an application for leave to seek an order of mandamus or order nisi, against the Attorney-General along the lines of his letter. That application was dismissed by the High Court, on the ground that the applicant lacked locus standi followed by an unsuccessful appeal to the Court of Appeal. On a further appeal to the Supreme Court, the applicant won and his locus standi was confirmed. That was in Fawehinmi v. Akilu & Anor 4 N.W.L.R. (Pt.67) 797, referred to in the briefs of the parties.

Armed with a decision of locus standi in his favour, before Olusola Thomas, J., the applicant, Chief Gani Fawehinmi applied for an order of mandamus compelling J .A. Oduneye, Esq., D.P.P. to prosecute Col. Akilu and Lt. Col. Togun for the murder of Dele Giwa or to allow him as private prosecutor to do so. Thomas, J., ordered as prayed and directed the D.P.P. to carry out the order on or before 25/1/88. On that date, the Attorney-General Lagos State filed a notice in the High Court indicating her decision to prosecute Col. Akilu and Lt. Col. Togun on the information received from Chief Gani Fawehinmi, which was filed in court. That was suit No. LD/4c/88 before Longe, J. Thereupon, Chief F.R.A. Williams, S.A.N:, filed an application, on behalf of Col. Akilu and Lt. Col. Togun, pursuant to the inherent Jurisdiction of the court under Section 6(6)(a), 1979 Constitution of the Federal Republic of Nigeria, and Sections 340(3) and 363 of the Criminal Procedure Law of Lagos State that the information against the applicants be quashed on the ground that neither of the two offences alleged therein is disclosed by the statements and or proofs of evidence filed herein, and that the said information was an abuse of the process of court. Longe, J., on 23/2/88 upheld that submission and quashed the information (Record p.52 to 70). His other reasons were that as the information related to an indictable offence, not being a misdemeanour, the Attorney-General had to seek the prior consent of a Judge before filing the information by virtue of Sections 77,275 and 340(2)(b) of the Criminal Procedure Law, and inspite of amendments by Edict No.4 of 1979 to the Criminal Procedure Law. A day after Longe, J.’s ruling, 24/2/88, the applicant, Chief Gani Fawehinmi, filed an action LD/329/88 before Famakinwa, J., seeking two declarations that ID/4c/88 proceedings were null and void, and that the conduct of the Attorney-General in the case was an abuse of her powers under Section 191 of the 1979 Constitution, and also an abuse of the Order of Thomas, J., of 21/1/88 in Suit No. M/513/86 between the same parties wherein the applicant applied for an order of mandamus against Oduneye, which was made pursuant to Section 342 of the Criminal Procedure Law (Record p.72-73). Famakinwa, J., subsequently dismissed the action. The applicant has appealed against that decision.

On the said 24th February, 1988, (Record p.74), the applicant, Chief Fawehinmi, had written a letter to the Attorney-General of Lagos State to the effect that in view of fresh evidence implicating Col. Halilu Akilu and Lt. Col. A.K. Togun, he wished to, if the Attorney-General would not prosecute them for the offences of murder of, and conspiracy to murder Dele Giwa. He then requested that the Attorney-General should let him know by the next day Thursday, 25th February, 1988, if the answer is in the negative, then the said Attorney-General should so endorse the Information attached. (Record p.74-75). By a letter dated 26th February, 1988, the Attorney-General of Lagos State replied the applicant, Chief Fawehinmi’s letter of two days earlier and observed that the applicant had filed a Suit No. LD/329/88 in the Lagos High Court against the Attorney-General of Lagos State. Col. Halilu Akilu, and Lt. Col. A.K. Togun, seeking an order that the ruling of Justice R.O. Longe of the Ikeja High Court be declared null and void. In view of that development, the Attorney-General declined to entertain the applicant’s request as subjudice, until the case pending in court is disposed of. (Record p.110).

The applicant, Chief Gani Fawehinmi, thereupon filed a fresh ex-parte application for an order of mandamus nisi to compel the Attorney-General to prosecute on the fresh evidence he had, or to endorse her refusal on the Information attached. Upon the ex-parte motion coming up for hearing before Agoro, J., on 2/3/88, Chief F.R.A. Williams sought leave of court to appear for his two clients so that the ex-parte application may be treated as one inter partes. He submitted that the court had the power to adjourn so that the two persons concerned may be served. He cited Pickwick International Inc. v. Multiple Sound Distributors Ltd (1972) 3 All E.R. 384; I.R. C. v. National Fed. of Self Employed and small Businesses Ltd. (1982) A.C. 617, 642. Chief Fawehinmi opposed the application as he sought no relief against the persons the [earned S.A.N. represented, but only against the Attorney-General. He cited Section 239 of the Constitution and Order 43 of the 1987 Uniform Rules. Agoro, J., ruled that the application of Chief Williams, S.A.N., was premature, because when the originating motion was filed all persons concerned will be served the processes.

Chief Gani Fawehinmi thereafter argued his ex-parte motion, and Agoro, J., ruled that he was satisfied with the statement verifying the facts and the affidavit in support that the applicant had sufficient interest in the prosecution of the alleged offenders. He was also satisfied that the applicant had produced additional information upon which the learned Attorney-General should, in exercise of her powers, prosecute the alleged offenders or decide that the applicant could institute a private prosecution. Agoro, J., accordingly granted the applicant leave to apply for an order of mandamus against the Attorney-General as prayed. (Record p.111-113).

Chief Gani Fawehinmi thereupon filed an application for an order of mandamus on 3/3/88 which was heard by Agoro, J., on 15/3/88. On that day Chief F.R.A. Williams, S.A.N., having filed, on 14th March, 1988, a notice of preliminary objection to the motion, urged the court to hear the preliminary objection first and thereafter Chief Fawehinmi’s application for an order of mandamus. For ease of reference the notice of preliminary objection reads thus:- (Record P.135)

“TAKE NOTICE that at the hearing of the Motion on Notice filed by the applicant herein, counsel for the above-named Col. Halilu Akilu and Lt. Col. A.K. Togun intends to raise the following preliminary objections:-

i. the application for leave to apply for the order for mandamus as well as the substantive application for the same are an abuse of the process of the court because (among other reasons) the above-named “prosecutor/applicant” having elected to treat the proceedings before LONGE, J .. as a nullity, cannot be permitted thereafter to ask this court to act on the basis that the said proceedings have been regularly concluded so that the Attorney-General can be compelled by an order of mandamus to exercise her discretion whether or not to prosecute the accused persons and if she declines to prosecute, to endorse a certificate to that effect as required by law.

ii. in the premises, the court ought not to entertain the application of the above-named “prosecutor/applicant” and ought to dismiss the said application or strike it out pursuant to its inherent jurisdiction.

iii. Further and in the alternative, the court ought to strike out the application herein because no court in the land has jurisdiction to make an order compelling the Attorney-General of Lagos State to endorse an information charging the persons accused therein for the offence of murder or for conspiracy to commit the offence of murder so as to enable a private complainant like the “prosecutor/applicant” herein to sign and file such information. Dated this 14th day of March, 1988.”

In arguing the preliminary objection, Chief Williams, S.A.N., made the following salient submissions. If it becomes clear to the court that any action is incompetent, the court has inherent jurisdiction and power to put an end to it (Heyting v. DuPont (1963) 1 W.L.R. 1192 at 1195; Enwezor v. Onyejekwe (1964) 1 All N.L.R. 14 at 19; Obikoya v. Registrar of Companies (1975) 4 S.C. 31 at 33. Also, a court has the right, suo motu, to set aside its own order, if it lacked jurisdiction. On the question of abuse of process, he submitted that if the proceedings before Longe, J., were declared a nullity, then the Information filed in LD/4c/88 may subsist, and the application for another order to initiate fresh proceedings would be an abuse of the process of court.

On the issue of jurisdiction he submitted that the decision of the Supreme Court in a similar matter was based on Section 340 as it was in 1978, which did not take cognisance of the amendments to Section 340(2) of Cap 32, and that as at that time under Section 340(2), as amended, the applicant could not prefer an information against the alleged offenders for murder or conspiracy to commit murder; and that the Supreme Court’s decision in Fawehinmi v. Akilu & Anor. (1987) 4 N.W.L.R. (Pt.67) 797 at 814, 827, 828, 834-5 did not comment on-Lagos State Law as of today, but as it was in 1978.

Chief Fawehinmi submitted that the Information before Longe, J., had been quashed, and there is a civil action pending to declare it a nullity. He then submitted that his application was not an abuse of the process of court: Nwachukwu v. Elewa (1985) High Court of Nigeria Report, 1393, 1402. As the judgment of Longe, J., has not been set aside, it subsists; Adebayo v. Johnson (1969) 1 All N.L.R. 176; Williams v. Sanusi (1961) 1 All N.LR. 334; Adeosun v. Babalola (1972) 5 S.C. 292; Mobil Oil Ltd. v. Coker (1975) 3 S.C. 175. There would only be an abuse of process of court under Section 33(9) 1979 Constitution if there had been a trial and acquittal, and that the situation was different from Egbe’s case because the Information in this case was quashed before trial, and that the court should apply the law as it was when the cause of action arose: Waife v. Attorney-General Bendel State (1982) 3 N.C.L.R. 296, 304; Adamu v. Attorney-General Bendel State (1982) N.C.L.R. 676, 679; Mustapha v. Governor of Lagos State (1987) 2 N.W.L.R. (Pt.58) 526, 549; Fatola v Mustapha (1985) 2 N.W.L.R. (Pt.7) 438, 451. He then submitted that the court should not allow its inherent jurisdiction to water down rules of court, statutory and constitutional provisions: Archbishop Okojie v. Attorney-General Lagos State FCA/L/133/81 of 26/4/82 (unreported); Erisi v. Idika (1987) 4 N.W.L.R. (Pt.66) 503, 512; Adigun v. Attorney-General Oyo State (1987) 2 N.W.L.R. (Pt.56) 197,235. (Record P.149A-149F).