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).

Agoro, J., adjourned the matter for a considered ruling on 8/4/88. In the mean time, on Monday, 21st March, 1988, Chief Williams, S.A.N., argued a motion inter partes for leave to appeal to the Court of Appeal from the decisions of Agoro, J., of 2/3/88, and for stay of further proceedings pending the determination of the appeal filed against the two decisions aforesaid and filed the following grounds of appeal. (Record P.119-120). The grounds are:

2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF:

(i) “Decision refusing permission to appellants to be heard through their counsel on the hearing of the applicant’s application for leave to apply for an order of mandamus.

(ii) Decision granting leave to the applicant to apply for an order of mandamus.

3. Grounds of Appeal:

(i) The learned Judge erred in law and/or failed to exercise his discretion judiciously in refusing to hear counsel for the appellants on the application made by the applicant for leave to apply for an order of mandamus against the respondent.

Particulars of Error

(a) The court was expressly informed that the point which counsel for the appellants intended to argue was that the application before the court was vexatious and an abuse of process.

(b) On the papers before the court there are arguable grounds to show that the proceedings are or may be vexatious and an abuse of process.

(c) The learned trial Judge gave no reasons for his refusal to hear counsel for the appellants.

(ii) The learned trial Judge erred in law in failing to observe that by reason of the provisions of Section 33 of the Constitution of the Federal Republic of Nigeria (which was cited to him) it was incumbent on the learned trial Judge to hear the counsel for the appellants and failure so to hear him constitutes a contravention of the constitutional right guaranteed to the appellants under the Constitution.

(iii) Being aware of the appellant’s action in Suit No. LD/329/88 and the reason why the Attorney-General declined to consider the applicant’s request, the learned Judge ought to have directed service of the Ex Parte Motion and/or ought to have heard counsel for the appellants who was in court and was prepared to address him.

(iv) The order granting leave ought to be set aside because the learned trial Judge failed to consider issues which he ought to have considered but proceeded instead to consider and make pronouncements on aspects of the application on which he ought not to have made any comments without hearing the appellants and the other party interested.

4. RELIEF SOUGHT FROM THE COURT OF APPEAL: To allow the appeal, set aside the decisions or judgments appealed from and substitute an order directing that the application for leave be dismissed or alternatively directing that the said application be heard by another Judge of the High Court.”

On 8/4/88, Agoro, J., delivered his ruling on the mandamus application by Chief Gani Fawehinmi and the preliminary objection thereto by Chief Williams, S.A.N. Agoro, J., overruled the preliminary objection, and granted the order of mandamus prayed for. Chief Williams, S.A.N., on 11/4/88 thereupon filed a motion for stay of further proceedings pending the determination of an appeal on that decision. The grounds of the Second Appeal, shorn of particulars, are as follows:- (Record P.166-168).

Grounds of Appeal

“i. The learned trial Judge erred in law in holding that the proceedings before him did not amount to abuse of process having regard to the plaintiff’s action seeking to declare the proceedings before LONGE, J., a nullity.

ii. The learned trial Judge erred in law in deciding that the High Court has jurisdiction to entertain the applicant’s claim for mandamus against the Attorney-General of Lagos State.”

4. RELIEF SOUGHT FROM THE COURT OF APPEAL:

To allow the appeal, set aside the decision or judgment appealed from and substitute an order directing that the application before the court below be dismissed or alternatively directing that the said application be heard by another Judge of the High Court,”

Briefs were filed and exchanged between the parties save that the Attorney-General filed no brief but was represented at the hearing of this appeal by the Director of Public Prosecution, A.N. Kessington, Esq. At pages 5 to 6 of the appellant’s brief, the question for determination were stated thus:

“i. Whether the commencement of proceedings by the applicant for an order of mandamus on 29/2/88 amounted to an abuse of the process of the court having regard to the fact that his action in Suit No. LD/328/88 was pending.

ii. Whether (apart from the offence of perjury) it is permissible for a private person such as the applicant to present an Information pursuant to Section 342(a) of the Criminal Procedure Law of Lagos State in respect of an alleged offence committed by another person.

iii. In the light of the answer to Question (ii) whether the Attorney-General of Lagos State has any duty imposed upon her by law to endorse a certificate to the effect mentioned in Section 342(a) of the Criminal Procedure Law.

iv. Whether the provisions of Sections 340, 342 and 343 of the Criminal Procedure Law of Lagos State are inconsistent with provisions of Section 191 of the 1979 Constitution in so far as these Sections of the C.P.L. enable or purport to enable a private person to share the powers conferred on the Attorney-General with her.

v. Whether, in the events which have happened in this case the Court of Appeal will make any pronouncements on the refusal of AGORO, J., to hear the appellants on the applicant’s application ex-parte or leave to apply for an order of mandamus.”

As regards the first appeal, it seems to me that the summary of the arguments of Chief Williams, S.A.N., in his brief and at the hearing are as follows: The refusal of Agoro, J., to convert the ex parte application for an order of mandamus nisi to one on notice to the appellants, in addition to the arguments he laid before Agoro, J., in the court below, was that the appellants were denied the exercise of their right to a fair hearing under Section 33 of the 1979 Constitution, as the court would have been assisted if it heard both parties. Kotoye v. Central Bank of Nigeria (1989) 1 N.W.L.R. (Pt.98) p.419, 445, 447, 451. Any rule of court inconsistent with the right of fair hearing under Section 33(1) of the Constitution should be read subject to it, and that an ex-parte application should be converted to one on notice on a proper application to the court to give reign to the maxim audi alteram partem, which the lower court refused to do: London City Agency v. Lee (1970) Ch. 597. As the appellants were refused permission to take part so that the ex parte application would be converted to one on notice, they are entitled to costs since the mandamus order had supervened.

In reply, Chief Gani Fawehinmi submitted that the arguments of Chief Williams, S.A.N., were misconceived having regard to Or. 53 r.1, Lagos High Court Rules, 1972. When an applicant applies and seeks leave of court, the court looks at supporting documents, the statement, and the relief sought, together with the affidavit in support to see if a prima facie case was made out. At that stage, he submitted, the counsel for the party cannot be heard, even on the law, Order 53 rule 3(1), (2): Eguamwense v. Amaghizemwem (1986) 5 N.W.L.R. (Pt.41) 282. The appellants were not parties as the relief sought concerned the Attorney-General of Lagos State: Fawehinmi v. Akilu & Anor. (1987) 4 N.W.L.R. (Pt. 67) 797, 858, 860. At that stage, as the appellants interested cannot be adversely affected, Section 33(1) of the Constitution was neither violated nor should it be prayed in aid. Besides, he submitted, after being granted an order of mandamus, the appeal on the refusal of the ex-parte application was academic and should be dismissed.

In Kotoye v. Central Bank of Nigeria already cited, the Supreme Court examined rules of the Federal High Court, Ord. 20 and Ord. 33 r. 8 on interlocutory applications including ex -parte applications in relation to Section 33(1) of the Constitution. Nnaemeka-Agu, J.S.C., who read the lead judgment opined that Section 33(1) of the Constitution encompasses the plenitude of natural justice in the narrow technical sense of the twin pillars of natural justice – audi alteram partem, and nemo judex in causa sua, as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so. On an interlocutory application, the learned J.S.C., further opined, a court could:

(i) refuse to make the order;

(ii) grant the order to show cause why the order should not be made; or

(iii) allowing the order to be made on notice.

Dealing with ex-parte applications he opined that the normal practice was to file an ex-parte application at the same time as another application on notice to the parties; and their counsel ought not to be encouraged to argue a sole application ex-parte when asking for orders which can only be properly made on notice. Nnaemeka-Agu, J.S.C., further opined that where a motion ex-parte is shown to be incompetent, the court should strike it out; a fortiori, on appeal, the Court of Appeal should strike it out. On that basis the appeal in hand could not be said to be merely academic. The Supreme Court would seem to have decided that on an ex parte application, if the party to be put on notice applied to the court to be heard, notwithstanding rules of court to the contrary, the court, pursuant to Section 33(1) of the Constitution, should grant the request. The appeal therefore succeeds on that ground.

As to the question of costs, Pickwick International Inc. (G. B.) Ltd. v. Multiple Sound Distributors Ltd. & Anor. (1972) 3 All E.R. 384 is the authority for the proposition that where, on an ex-parte motion for an injunction, the respondent is present at the hearing, at the express or tacit invitation of the applicant, in order to assist the court by disclosing what contentions may be advanced against the grant, or what is the general line of evidence in opposition that is likely to be filed, and the motion is dismissed, the court has jurisdiction to order the applicant to pay the costs of the party who has successfully opposed the motion, whether as costs in the cause, or as costs in any event. In the case in hand, the appellants, by their Counsel, were present at the hearing of the ex-parte motion not at the express or tacit invitation of Chief Gani Fawehinmi the applicant, but at their own invitation, tactically to deal a pre-emptive strike on the applicant, neither was the motion dismissed. In the circumstances, the applicant cannot be expected to pay costs to a volunteer. Appellant’s application for costs is accordingly refused.

As to the application for mandamus before Agoro, J., and Chief Williams’ S.A.N., preliminary objection that it was an abuse of the process of court which was overruled, Chief Williams submitted that on the basis of the Supreme Court decision in Appeal No. SC.215/1989 to the effect that the combined effect of the Lagos State Administration of Justice (Miscellaneous Provisions) Amendment Edicts, 1979, and 1984, as well as Section 340(2) of the Criminal Procedure (Amendment) Edict 1987, which came into force on 14/7/87, is that a private prosecutor in Lagos State could only now prosecute a person charged with the offence of perjury, the appeal on the decision of Agoro, J., overruling his preliminary objection should be allowed as Chief Fawehinmi applied for an order of mandamus on 2/3/88 which was granted on 9/4/88 by Agoro, J., well after 14/7/87.

In reply Chief Gani Fawehinmi submitted that the plea of abuse of the process of court is capable of being misused. See Wachukwu v. Elewa (1985) H.C.N.L.R. 1393 per Tobi, J., at 1402. He then submitted that the mere fact that LD/329/88, the declaratory action before Famakinwa, J., which sought to nullify the criminal proceedings before Longe, J., in LD/4c/88, was pending when mandamus application M/87/88 was filed in court is not a duplication of proceedings for substantially the same cause, and is therefore not an abuse of the process of court: See Thames Launches Ltd. v. Trinity House Corporation (1961) Ch. D. 197 at 209 which is not applicable to the appeal in hand,especially as the applicant is not raising the same issue by his opponent as plaintiff in another case, and because in a declaratory action, there is nothing to be carried out by or against the defendant. Ekwuno v. Ifejika (1960) 5 F.S.C. 156 159-160; where the Supreme Court approved the dictum of Buckley, L.J., in Hammerton & Co. v. Earl of Dysart (1914) 1 Ch. 822, 838; Akunnia v. Attorney-General Anambra State (1977) 5 S.C.161, 177. He then submitted that if LD/329/88 succeeds, it means LD/4c/88 subsists; if M/87/88 succeeds it means a fresh information will be preferred, thus two charges will be pending, which is not an abuse of the process of court unless the two information are proceeded with simultaneously. Amaefule v. The State (1988) 2 N.W.L.R. (Pt.75) 156.

As to the construction of the amendments in Edicts numbers 1 and 4, 1979, and Edict No.7 of 1987 which amended Section 340(2) of the C.P.L., Chief Fawehinmi submitted that there are other provisions in the C.P.L. subsequent to Section 340(2) which give a private person the power to prefer an information against an accused person. See Sections 342 and 343 of the C.P.L. He then contentions of the appellant were to be sustainable, the legislature would have expressly done so by amending Sections 340(1) and 342 of the C.P.L. He then urged the court to uphold the right of the private prosecutor in Lagos State to prefer an information charging an indictable offence against any person under Sections 340(1) and 342 of the C.P.L.

Amaefule v. The State does not provide an answer to the question at issue in this appeal because the competence, and locus standi of the prosecutor in respect of the offences charged in the two courts were not in issue. The issue in this appeal is that on the date Agoro, J., ruled that the applicant, Chief Fawehinmi, had competence, and locus standi as a private prosecutor to prosecute for the offences of murder and conspiracy to murder in Lagos State, the legislation cited above,which were enacted, and in force before the date of his decision, had expressly provided that the applicant, Chief Fawehinmi, had no such competence, or locus standi, save for the prosecution of the offence of perjury only. The arguments of Chief Williams in this regard are unassailable. Chief Gani Fawehinmi’s arguments are to say the least misconceived.

Besides, our task has been made much lighter by the recent decision of the Supreme Court on the point at issue in Colonel Halilu Akilu v. Chief Gani Fawehinmi (1989) 3 S.C.N.J. p.1. In the lead judgment of Karibi-Whyte, J.S.C., at pp.22 to 31, his Lordship opined thus:-

“I am in complete agreement with the submission of Chief Williams here, that Chief Gani Fawehinmi cannot fall within the meaning of the word “any person” in the provisions of Section 340(1) of the Criminal Procedure Law Cap 32 for the prosecution of offences under Part 31 unless for the offence of perjury. This is because Section 340(2) as amended by the Criminal Procedure (Amendment) Edict No.7 of 1987 reads as follows:-

“Subject as hereinafter provided no information charging any person with an indictable offence shall be preferred unless the information is preferred pursuant to an order made under Part 31 to prosecute the person charged for perjury.”

Since the general provision in Section 340(1)is subject to the specific provision in section 340(2), it follows that other offences other than perjury must be initiated in accordance with the procedure prescribed under the Criminal Procedure Law. Hence the information within the meaning of Section 342 relied upon by Chief Gani Fawehinmi for the exercise of his right must be limited to the offence of perjury. The right of a private prosecutor to initiate prosecution in all other offences has been withdrawn by the amendment to Section 340(2) of the Criminal Procedure Law Cap 32, Vol. 11, Laws of the Lagos State, 1973, by the Administration of Justice (Miscellaneous Provisions) Law No.4 of 1979 and the Criminal Procedure (Amendment) Edict No.7 of 1987.

A private prosecutor can now only initiate prosecution for the offence of perjury.”

Bello. C.J.N., in supporting the lead judgment opined thus:-

“Now, by the combined effect of the Administration of Justice (Miscellaneous Provisions) Amendment Edict, 1979 and the Administration of Justice (Miscellaneous Provisions) (Amendment) Edict, 1984 and the Criminal Procedure (Amendment) Edict, 1987. Section 340(1) and (2) now read:-

“340(1) Subject to the provisions of this section an information charging any person with an indictable offence may be preferred by any person before the High Court charging any person with an indictable offence for which that person may lawfully be indicted, and wherever an information has been so preferred the registrar shall, if he is satisfied that the requirements of the next following section have been complied with, file the information and it shall thereupon be proceeded with accordingly.

Provided that if the registrar shall refuse to file an information, a Judge, if satisfied that the said requirements have been complied with, may, on the application of the prosecutor or on his own motion, direct the registrar to file the information and it shall be filed accordingly.

(2) Subject as hereinafter provided no information charging any person with an indictable offence shall be preferred unless the information is preferred pursuant to an order made under Part 31 to prosecute the person charged for perjury.

The amendments by the Edicts have limited the right of a private prosecutor to prefer an information for the offence of perjury only. He has no right to prefer an information charging any person with murder.”

A classical common law view of a Judge’s reasoning process was declared in Mire house v_ Rennell (1833) 1 CL & F 527,546 by James Park, L, thus:-

“Our Common Law system consists in applying to new combination of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency and certainty,we must apply those rules,where they are not plainly unreasonable and inconvenient to all cases which arise;and we are not at liberty to reject them, and is to abandon all analogy to them, in those to which they have not yet been judicially applied because we think the rules are not as convenient and reasonable as we ourselves would have devised. It appears to me to be of great importance to keep this principle of decision steadily in view, not only for the determination of the particular case, but for the interests of law as a science.

The summation of Chief Fawehinmi’s arguments are to the effect that the amendments made in the legislation noted above are not as convenient and reasonable as he himself would have devised, were a lower court to the Supreme Court to follow such an argument, it would place the legal science of law in jeopardy and would earn the rebuke of the Supreme Court. What one may term the “progressive” or ‘radical’ argument of Chief Fawehinmi was mooted with due caveat by Lord Denning in the Family Story at p.174, and many regarded Lord Denning as a progressive Judge when he said:

“My root belief is that the proper role of a judge to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the judge to do all that he legitimately can to avoid that rule – or even to change it; so as to do justice in the instant case before him. He need not wait for legislation to intervene,because that can never be of any help in the instant case. I would emphasize, however, the word ‘legitimately’: the judge is himself subject to the law and must abide by it.”

The Court of Appeal is subject to the decision of the Supreme Court and we must abide by it.

In Alade v. Alemuloke & Ors. (1988) 1 NWLR (Pt.69) 207 at 212, the Supreme Court opined thus:-

“The primary responsibility of the Supreme Court should be that of developing and maintaining consistency in the law to be applied in our subordinate courts and of interpreting the country’s fundamental law-its constitution.”

As the law stands in Lagos State before the day Agoro, J., was seized of the mandamus case, a private prosecutor had no legal backing to prosecute for murder, or conspiracy for murder and the court lacked jurisdiction to entertain the application which he should have dismissed as an abuse of the process of court.

As opined by Nnamani, J.S.C., in Ikomi v. The State (1986) 3 N.W.L.R. (Pt.28) 340 at 356:-

“The courts have inherent jurisdiction to prevent abuse of their process. The judicial power which is conferred on the courts is intended to be used in deciding issues in genuine cases or controversies. This power of courts to prevent abuse of process includes the power to safeguard an accused person from oppression and prejudice such as would result if he is sent to trial pursuant to an information which discloses no offence with which he is in any way linked. Connelly v. D. P.P. (1964) A.C. 1254, 1301, 1302.”

As the Attorney-General of Lagos State submitted no brief of arguments and as the abuse of power by the Minister of State, if any, is the responsibility of the political power that appointed him, it is to that extent not justiciable as the court does not question the exercise of the power of the Attorney-General. See Chukurah v. Attorney-General (1964) N.M.L.R. 64 and other cases where the power of the Attorney-General to enter a nolli prosequi have been unsuccessfully challenged, especially Adegoke Adelabu & Anor. v. Inspector General of Police (1955-56) W.R.N.L.R., 108; The State v. Adakole Akor & Ors. (1981) 2 N.C.L.R. 710; R. v. Allen (1862) 1 B. & S. 850, 852; R. v. Comptroller of Patents (1889) 1 Q.B. 909; and note Lord Campbell, C.J.’s dictum in Ex Parte Newton (1855) 4 F. & B. 869; 119E.R. 323 thus:

“If he (the Attorney-General) refuses to hear and consider an application for a fiat we would compel him by mandamus to hear and consider it; but when he has heard and considered and refused, we cannot interfere. The Attorney-General may be made responsible to Parliament. If he has made an improper decision the Crown may and if, properly advised, will dismiss him, but we cannot review his decision.”

Thus under Section 191 of the 1979 Constitution the power of the Attorney-General to institute and undertake criminal proceedings or to discontinue one at any stage whether instituted or undertaken by him or any other authority or person is subject to his own conscience and good faith as he must have regard to the public interest, the interests of justice and the need to prevent an abuse of justice, for he is under no control whatsoever, judicial or otherwise, save the loss of his job if he offends his political master. See The State v. S.D. Ilori & 2 Ors. (1983) 2 S.C. 155.

In conclusion, the following orders are hereby made in the light of the grounds of appeal and questions for determination.

(1) Pursuant to Section 33(1) of the 1979 Constitution, Agoro, J., had the duty to hear appellant’s counsel and to convert the ex parte application for leave to apply for an order of mandamus to one inter partes.

(2) The commencement of proceedings by the applicant for an order of mandamus on 29/2/88 before Agoro. J., amounted to an abuse of the process of court and the learned trial Judge should have allowed counsel for the appellants to argue the preliminary objection to the mandamus proceedings having regard to the amendments in Edicts numbers 1 and 4 of 1979, and Edict No.7 of 1987 which amended Section 340(2) of the C.P.L. not necessarily be cause LD/329/88 was pending.

(3) Apart from the offence of perjury for which a private person may prosecute under Section 340(2), Section 342(a) of the C.P.L. Lagos State does not permit a private person to prosecute for any other offence.

(a) Sections 340, 342 and 343 of the C.P.L. of Lagos State are not inconsistent with Section 191 of the 1979 Constitution in so far as those Sections permit a private person to prosecute for perjury as the Attorney-General has the overall power to institute and undertake criminal proceedings or to discontinue one at any stage whether instituted or undertaken by him or any other authority or person.

(b) The Attorney-General of Lagos State is under no duty imposed by law to endorse a certificate to the effect mentioned in Section 342(a), save on an information from a private person to prosecute for the offence of perjury.

The appeals herein are accordingly allowed to the extent indicated in the orders herein, with N500 costs against the respondent, Chief Gani Fawehinmi.

Other Citations: (1989) LCN/0087(CA)