Commissioner of Police V. Nze George Ali & Ors (2002)

LawGlobal-Hub Lead Judgment Report

SYLVANUS ADIEWERE NSOFOR, J.C.A.

This is a double appeal from the decision by the Owerri High Court of Appeal N.O. Adigwer J. in Suit No. HOW/4CA/94 on the 3rd of April, 1996 on an appeal thereto from the decision of the Magistrate’s court, of Imo state holden in Nwaoriebi on the 7th of February 1994 in charge No. MNU/59C/94. The appeal raises a question of the competence of (i) the Notice: of criminal Appeal signed and filed on the 14th of February, 1994 by a serving Police officer/Lawyer and, (ii) the Deputy Superintendent of police/Lawyer appearing as Counsel, to prosecute the appeal.

I shall state the antecedent facts leading to the appeal in some detail. The respondents herein were the accused persons in charge No. MNU/75C/93. They were charged with various offences in the five Counts of the charge. Count 1 of the charge charged them with conspiracy to commit a felony to wit stealing contrary to Section 516A (a) of the Criminal Code Cap. 30. Vol. II (Laws of Eastern Nigeria, 1963, hereinafter referred to as the Code for short). In Count II, they were charged with stealing contrary to Section 390(a) of the Code counts III, IV and V, respectively, charged them with willful and unlawful damage, contrary to section 451 of the code.

The case came on before the learned trial senior Magistrate Grade I, I.O Agugua Esq; for the hearing on the 21st of July, 1993. As the Record shows, the accused person were present in court and were represented by a counsel, C. U. Ekomaru Esq. Inspector H. Nwetu was prosecuting.

The Prosecuting Police inspector applied for an adjournment, on the ground that the case file was sent to the Director of Public Prosecution (D.P.P) on his request, and he (the D.P.P.) had not returned it.

The learned trial Senior Magistrate Grade I heard the counsel of the accused persons on the application for an adjournment.

In the ruling after hearing the addresses, the Court wrote (See Pages 4/5 of the Record of Appeal) inter alias, thus 3-

“Court: I have jurisdiction to entertain this case and I have not referred the case to the D.P.P for advice… I therefore do not know under what law or with what authority the D.P.P has taken a case file pending in my court from Prosecutor without leave and permission of this Court. This case is fixed for hearing to day. Prosecution has not got the case file and therefore cannot prosecute. Charge No. MNU/75C/93 is hereby dismissed under Section 280 C.P.L for want of prosecution.

Subsequent efforts by the prosecution to charge and prosecute the accused for the offences previously charged failed. The accused persons were charged in Charge No. MNU/205C/93 with the same offences as in the charge “dismissed” on the 27/7/93. On their arraignment before the learned trial Chief Magistrate N. Okoroafor Esq, on the 17th of December, 1993, each accused person raised a special plea or defense of autre foi acquit to each count of the Charge. After hearing the Counsel for the accused persons and Inspector F. Nwabisi for Prosecution, the learned Chief Magistrate in his Ruling upholding the plea held at, page 10 of the Record, inter alias:-

“The accused persons having been tried and acquitted and cannot again stand trial for the same charge again, for that would be illegal and unconstitutional

(Sgd) N. Okoroafor Esq:

Chief Magistrate GD.1.

17/72/93L”.

The accused persons were next charged, on Charge No. MNU/59C/94 with the offences as previously in Charge No. MNU/205C/93 dismissed. When the case came on before the Magistrate’s Court on 7/12/94, the accused were present in court and represented by Counsel Deputy Superintendent of Police S. A. Mbara was prosecuting

On a preliminary objection by the leading Counsel for the accused to the jurisdiction of the trial Court, the Court held (See page 21 of the Record of Appeal).

“I cannot sit on appeal on the two Rulings… and I therefore merely strike out this case for want of Jurisdiction”.

Against this Ruling the Prosecutor had appealed to the Imo State High Court of Appeal” The “Notice of Appeal” was signed and filed by S. A. Mbara Esq of Counsel for the Prosecution.

The appeal came before the High Court of Appeal (hereinafter referred to as the court below) on the 22nd of June, 1994. The minutes by the Court (see page 25 of the record) read, inter alias: –

“Court: –

On agreement of Counsel this case is adjourned to Mnday 11th July, 1994… Mr. S.A. Mbara is asked by Court to address it on the competence of the Police Lawyer who is still a serving Police Officer to prosecute the Appeal in a Criminal Case.”

The Court heard the addresses by the learned Counsel for the accused, the appellant and the Honourable Attorney-General as and Amicus Curiae on the 8th of February 1996. Thereafter, it reserved its Ruling.

In a reserved and considered Ruling on the 3rd of April, 1996, the learned Judge at page 56 of the Record expressed himself thus: –

“This appeal was filed by Mr. Mbara as Counsel to the prosecution who had no locus to do so and the Appeal filed by him is therefore incompetent. In the final analysis I hold the view

(1) That this Appeal filed by Mr. Mbara is incompetent.

(2) That Mr. Obia who is a serving Police Officer on Salaried employment though enrolled as Barrister and Solicitors is Act Cap. 207 to practice as Barrister and Solicitor and cannot in this case advocate for the prosecutor/Appellant in Court.

(3) This appeal is therefore hereby accordingly dismissed”.

Dissatisfied and aggrieved with the decision of the Court below, the commissioner of Police had appealed to this Court by a Notice of Appeal filed on the 14th of June 1996, raising three grounds of Appeal.

The ground of Appeal, shorn of their respective “Particular of Error”, read: –

“1. The learned Judge erred in law by holding Police Officer though a Barrister and Solicitor as Counsel for the Prosecution is Incompetent.

2. The learned Judge erred in law by holding Mr. Obia though a Barrister and Solicitor but as a Salaried Federal Public Officer is not entitled to appear as Barrister and Solicitor.
3. The learned Judge erred in law when he made to be incompetent”.

In this court, the Commissioner of Police is the appellant. The accused persons in the Magistrate’s Court of trial are the respondents.

The parties had, in obedience to the Rules of the Court, filed and exchanged their briefs of arguments.

Therein, they identified the issues for determination.

The appellant, in the Appellant’s brief deemed properly filed and served on the 5th of November, 2000, had formulated three (3) issues for determination.

They read: –

“3.01. Whether the appeal filed at the High Court for the Commissioner of Police by Mr. S.A. Mbara then a serving Police Officer and a Lawyer without the consent or fiat of the Attorney-General of Imo State was incompetent.

3.02. Whether Mr. E. Obia a serving Police Officer and a legal practitioner is competent to prosecute Criminal appeal in the High Court without the consent or fiat of the Attorney-General.

3.03. Whether the order by the learned High Court Judge dismissing the appeal he held incompetent (wrongly in my respectful view) was proper.”

Note: – The brackets with their contents in Issue No. 3.03 (supra) cannot be and are not part of an issue for determination.

The Respondents’ brief of argument was filed on the 10th of December, 1998. Quite surprisingly the Counsel for the Respondent formulated a galaxy of eight (8) issues out of three grounds of appeal. The respondents did not cross-appeal. No. Not being appellant, they cannot distil more issues than the ground of appeal from which the issues ought to be formulated. The issues for determination in an appeal may be less but never more than the grounds of appeal from which they are distilled. At the hearing of the appeal, D.C. Ndiokwere Esq. of Counsel for the respondent had to withdraw and abandon issues Nos. 4, 5, 6, 7 and 8 together with their respective arguments. These were struck out accordingly.

The respondent’s three issues (Nos 1 to 3) are substantially the same as the appellant’s except for being unnecessarily verbosely counched. I reproduced them hereunder regardlessly.

“1. Whether a serving Police Officer, on Salaried employment in the service of the Police as Mr. S.A. Mbara (d.s.p) retired was not incompetent to have filed Notice and grounds of Appeal for the Prosecution though his name is on the roll of Barristers and Solicitors of the Supreme Court.

2. Whether a public Officer enrolled as a Barrister and Solicitor and in the Public Service of the Federation though not in any of the twenty-two (22) capacities listed in the schedule to Order 2 of the Entitlement to PRACTISE AS BARRISTERS AND SOLICITORS (Federal Officers) ORDER made under Section 2(3) of the Legal Practitioners Act 207 (sic) is entitled to practice while still holding the Police Office.
3. Whether Mr. E. Obia who is entitled to practice as a Barrister and Solicitor by virtue of sub-section 1 of section two of the Legal Practitioners Act is not limited in practice by section 3(b) of the Act”.

Contentions: –

The contention by counsel in the Appellant’s brief in support of issue No. 1 was that the Notice of Criminal Appeal signed and filed by Mr. S.A. Mbara was filed for and on behalf of the Commissioner of Police, the Prosecutor, who by section 59 of the Magistrate’s court Law cap, 52 Laws of Eastern Nigeria, 1963, applicable in Imo State, had a right to appeal as of right. He did not require a fiat of the Attorney-General of Imo State. The “Notice of Appeal” signed and filed by the serving police officer and a qualified legal practitioner under Sections 2(1) and 7(1) of legal practitioner Act, Cap. 207 Laws of Federation of Nigeria, 1990, who was Mr. S.A. Mbara, was competent, counsel contended.

In respect of Issue No. 2 it was contended by the Counsel in the Appellant’s brief that Mr. E. Obia who appeared in the court below to prosecute the appeal thereto was a serving police officer as well as a legal practitioner under the Legal Practitioners Act Cap. 207 Laws of the Federation 1990. Besides, it was further contended that Mr. Obia being a police officer had authority under section 23 of the police Act. 359 Laws of the Federation 1990, to represent the Prosecution but subject only to the provision of section 160 and 191 of the 1979 Constitution of Nigeria then applicable. The Attorney-General not having exercised his powers in that regard, the power of the police officer to prosecute the Criminal Appeal is “Unlimited”. Concluding, Counsel referred to section 79 of the High Court Law, Cap. 61 Laws of Eastern Nigeria, 1963, then applicable, and contended that Mr. E. Obia was entitled to appear in and be heard as counsel.

Dealing with the Issue No.3 lastly, Counsel contended that the learned Judge in the Court below was in error in dismissing the appeal not heard on the merits instead of striking it out merely, assuming that the “Notice of Appeal” initiating the appeal be incompetent.

For the respondents, Counsel at page 4 of the respondents’ brief contended that the right to file the notice of appeal in the Criminal Case was reserved to persons entitled to practise and barristers and solicitors. But S. A, Mbara being a serving police officer of the rank of a Deputy Superintendent, of Police by the 14th of February, 1994, when he filed the notice of appeal, was not competent so to do as counsel, the Counsel contended.

Counsel in the Respondents brief had referred to Sections 160 and 191, of the 1979 Constitution of Nigeria. Relying thereon, he contended that Mr. S.A. Mbara, a serving Police Officer, not being an officer in the Office of the Attorney-General would not, competently lodge the appeal without the fiat of the Attorney-General of the State.

In respect of issue No.2. learned Counsel contended in the Respondents’ brief , relying on Section 2 (3) of the Legal Practitioners Act, Cap .207 Law of the Federation, 1990; and the Order made thereunder, that the Police Officers were not entitled to practise as barristers and solicitors because of the non-inclusion of the “Police” in the list to the Schedule to the Order.

Consideration: – The appeal falls within a very narrow compass. But before I go any further in my consideration of the issues raised, I shall pause for a while to dispose of a point. It arises from the submission by counsel to the respondents’ based on Section 2(3) of the Legal Practitioners Act, Cap. 207 Laws of the Federation 1990, and the Order – Entitlement To Practise As Barristers And Solicitors (Federal Officers) orders made thereunder.

Section 2(3) of the Act (supra) and the order made thereunder are wholly and entirely irrelevant to this appeal. Section 2 (3) of the Act is inapplicable to either Mr. S. A. Mbara or Mr. E. Obia-who were police Officers/Lawyers.

Section 2(3) of the Act. Stipulates, inter alias as follows: –

“A person for the time being exercising the functions of any of the following offices that is to say-

(a) The office of the Attorney-General, Solicitor General or Director of Public Prosecution of the Federation or of a State.

(b) shall be entitled to practise as a barrister and solicitor for the purposes of that office”.

Certainly, in my respectful opinion, sub-section (3) to Section 2 of the Act concerns and deals with persons not adumbrated in sub-section (1) and/or sub-suction (2) to section 2 of the Act. Section 2 (3) or the Act makes an exception in favour of the persons holding the offices enumerated therein. Those persons or holders of those offices would otherwise not have been entitled to practise as barristers and solicitors. Pure and simple; nothing more and nothing less. The privilege to Practise as barristers and solicitors attached to the “Officer”, not to the “holder” thereof. I shall deal, later, with sub-sections (1) and/or (a) to section 2 of the Act in the Judgment.

Now, Section 2 (1) of the Legal practitioners cap. 207 Laws of the Federation 1990, provides as follows: –

“2 (1) Subject to the provisions of, this Act; a person shall be entitled to practise as a barrister and solicitor if and only if, his time is on the roll”.

It was not disputed that Mr. S. A. Mbara’s name was “on the roll”. Therefore he was entitled to practice as a barrister and solicitor. Similarly, it was agreed on all sides that, the name of Mr. E. obia was “on the roll”. He was regularly, entitled to practice as a barrister and solicitor. As a person entitled to practise as a barrister and solicitor, Mr. S.A. Mbara did, on the 14th of February, 1994, sign and file the “Notice of Appeal” as “counsel for the prosecutor”

The “Notice of Appeal” thus signed and filed by him, I do hold was competent, as Mr. S. A. Mbara was competent to sign and file it. Similarly, Mr. E. obia being entitled to practise as a barrister and solicitor was competent, to appear in and, entitled to audience in the court below as counsel and, I do so hold.

But it was a common ground that both Mr. S.A. Mbara and Mr. E. Obia were police Officers. As Police officers did they require the fiat of the Attorney-General to function? I shall advert to the poser and its answer later in the judgment.

Mr. S.A. Mbara – a Police Officer/Lawyer-lodged the appeal on the 14/2/94 for the prosecution/Appellant. And Mr. E. Obia-D.S.P./Lawyer-was representing the appellant, in the Court below. the above opens the doors to me to examine section 59 of the Magistrate’s court Law Cap. 82 Laws of Eastern Nigeria, 1963 and Section 79 High Court, of the Law Cap. 61 Laws of Eastern Nigeria, 1963, both then applicable, for the purposes of fullness.

Section 59 of the Magistrate’ Court Law gives to the Commissioner of Police/Appellant for whom Counsel Mr. S.A. Mbara – lodged the appeal on the 14/2/94, a right of appeal as of right. It provides: –

“For the purposes paragraph (g) of subsection (1) of section 53 of the constitution of Eastern Nigeria the prosecution may appeal to the High Court from an acquittal or dismissal where-

(a) An accused person has been acquitted e or

(b) An Order of dismissal has been made by a Magistrate At the risk of a repetition, the appeal from the Magistrate’s decision was lodged on the behalf of the commissioner of police (Prosecution) by counsel – Mr. S. A. Mbara – The “Notice of Appeal” or, the appeal cannot be otherwise than competent. Yes:

Now, to section 79 of the High court Law cap. 51 Laws of Eastern Nigeria 1963, Subnomen:

“Representation of Parties, “section in 79 (1) provides inter alias: –

“(1) Subject to this section, in the case of a prosecution –

(a) By or on behalf of the State, or

(b) the state or that Public Officer may be represented by –

(i) A law officer

(ii) A police officer, or

(iii) A legal practitioner

Duly authorized in that behalf by the Attorney-General or in revenue cases authorized by the head of the department concerned”. It is clear to me from the clear wording of section 79 (1) of the High Court Law (supra) that Mr. E. Obia, Police Officer cum barrister and solicitor could competently represent the appellant in the court below without the fist of the Attorney-General, but this is not the end of the matter. No

I, now, advert to the poser (supra): and this leads me, first to examine Section 23 of the Police Act, Cap. 359 Law of the Federation, 1990.

Section 23 of the police Act read: –

“23. Subject to the provisions of Section 160 and 191 of the Constitution of the Federal Republic of Nigeria (which relate to the power of the Attorney-General of the Federation and of a state to institute and undertake, take over and continue or discontinue criminal proceedings against any person before any Court of Law in Nigeria), any Police Officer may conduct in person all prosecutions before any Court whether or not the information or complaint is laid in his name.”

One of the issues raised in the appeal was Whether Mr. E. Obial a Police officer, could competently appear to prosecute a criminal appeal from the decision of the Magistrate’s Court to the Imo State High Court of Appeal.

It seems to me rather clearly that by the provision of Section 23 (supra) “any police officer may conduct in person all prosecutions before any Court” in Nigeria except that the power to conduct such prosecutions is “subject to the provisions of sections 160 and 191 of the constitution of the Federal Republic of Nigerian. The first question arising becomes this: (a) what does the phrase, “subject to” connote and denote? (b) What is the power of the police officer “subject to”?

The clause, “subject to” received a judicial interpretation by the Supreme Court, the voice of infallability, in the case of Tukur vs. Government, of Gongola State (1984) 4 N.W.L.R (Pt.117) 517 at page 565 where it held that:

“The expression ‘Subject to’ is often used in statutes to introduce a condition, a restriction, a limitation. See Thompson Oke Vs Robinson Oke (1974) 1 A11 N.L.R. (pt. 1) 443 at 450.”

Continuing at page 580 the Court said: –

“Whether the expression “subject to” is used at the commencement of a statute, it is an expression of limitation. It implies that what the section or subsection is “subject to” shall govern, control, and prevail over what follows in that section or subsection of the enactment”.

Again, in Labiyi vs. Anretiola (1992) 8 N.W.L.R (Pt. 258) 139 the Supreme Court at pages 163/164 had this to say of the phrase, “subject to”.

“The phrase “subject to” in a statute introduces a condition, a proviso, a restriction and a limitation. The effect is that phrase evinces an intention to subordinate the provisions of the subject to the section referred to which is intended not to be affected by the provisions of the later. Thus where the expression is used at the commencement of a statute as in section 1(2) of Decree No. 1 of 1984, it implies that what the subsection is “subject to” shall govern, control and prevail over what follows in that section or subsection of the enactment. Oke vs Oke (1974) 1 AII N.LR. (Pt. 1) 443. Aqua Ltd vs. Ondo State Sport Council (1988) 4 N.W.L.LR (Pt. 91) 622; Tukur vs. Government of Gongola State (1989) 4 NWLR (Pt.117) 517″.Arising from the above interpretation, it follows that section 23 of the Police Act (supra) must be controlled, restricted, limited by the provisions of section 160 and 191 of the Constitution. It means that the provisions of the Constitution shall govern and prevail over the provisions of section 23 of the Police Act. But while the constitutional provisions evidence an intention to subordinate the provisions section 23 of the Police Act the latter is effective and operational except where the former is applicable. Put in other words, the exercise of the power to prosecute in any Court by the police officer under section 23 of the Police Act can only be exercise where the provisions of section 160 and 191 are not invoked.

Section 160 of the Constitution of the Federal Republic of Nigeria (hereinafter referred to as the Constitution) provides: –

“(1) The Attorney-General of the Federation shall have power –

(a) To institute and undertaken criminal proceedings against any person before any Court of Law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly:

(b) Take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and

(c) To discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person”.

This is the subsection relevant to this appeal. A similar provision, mutatis mutandis, is made in subsection (1) of section 191 in respect of the Attorney-General of the State. By these provision the Attorney-General of the Federation and of the State as the case may be, are empower to institute and undertaken any criminal proceedings in any Court in Nigeria and if any other person or authority instituted or undertook any such criminal proceedings in any Court in Nigeria within their respective jurisdiction, they have the power to take them over, continue or discontinue such criminal proceedings. The decision to take over, continue or discontinue such criminal proceeding depends entirely upon the Attorney-General concerned and, if he decides not to do so in any particular case he is not forced or bound to do so. In this instant case, the power to prosecute or undertaken the criminal prosecution is vested in the Police Officer under Section 23 of the Police Act (supra) subject to the exercise of the powers conferred on the Attorney-General of Imo State by the provisions of section 191 (!) of the Constitution. Therefore, the Police Officers power to prosecute the criminal proceedings in the case giving rise to this appeal are not limited, restricted or controlled. Mr. E. Obia, qua Police Officer, was competent to prosecute these proceedings in any Court in Nigeria including the court below. A Police Officer is defined in Section 1 of the Police Act to mean any member of the Police Force.

Perhaps, it needs to be said that an appeal, whether civil or criminal, is not an inception of a new case. An appeal is general regarded as continuation of the original suit rather than an inception of a new action. See Oredoyin vs. Aeowolo (1989) 4 NWLR (Pt. 114) 172 at P. 211.

The suit in the Court was not heard on the merits. No. The learned Judge was, with respect him, in error to have made the order dismissing it.

I shall, now, proceed to record my resolution of the issues formally. Issue No.1 is answered negative. Put in other words, the “notice of appeal” filed by S.A. Mbara on the 14/2/94 was competent. Issues No. 2 is resolved in the affirmative. And issues No. 3 is resolved in the negative. There in, therefore, some merit in the appeal. It succeeds accordingly.

In the result, the appeal is allowed. The order by the Court below dismissing the suit No. HOW/4CA/94 on the 3rd of April, 1996, is hereby set aside. In its place, it is ordered that the Suit be remitted to the Court below to be heard on its merits by a Judge other than by N.O Adigwe, J.

---

Other Citations: (2002)LCN/1260(CA)