Director Of Public Prosecutions V. Michael Akozor (1962)

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UNSWORTH, F.J

This is a reference by the Chief Justice of the High Court of Lagos under section 108 of the Constitution. The reference is in the following terms:-

1. On the 17th February, 1961, the Union Trading Company Limited brought a private prosecution in the Chief Magistrate’s Court, Lagos, against the defendant wherein he was charged on six charges, namely, five charges to make a false entry contrary to Section 438(b) of the Criminal Code, and one charge of destroying a document contrary to Section 390 (6) of the Criminal Code. Mr Impey, a private legal practitioner, acted for the complainant.

2. In the course of the trial the Director of Public Prosecutions directed that all the proceedings be discontinued and the defendant was accordingly discharged.

3. On the 29th March, 1961, the Director of Public Prosecutions instituted fresh proceedings against the defendant on similar charges, and a preliminary enquiry began at which Mr Impey, instructed by the Director of Public Prosecutions, appeared to prosecute with Mr Peters, a Crown Counsel

4. Mr Okafor, on behalf of the defendant, objected to Mr Impey appearing on the ground that section 97 of the Constitution of the Federation of Nigeria precludes the Director of Public Prosecutions from instructing a private legal practitioner to appear in a criminal case either alone or with himself or another member of his staff.

5. Mr Impey contended that the Director of Public Prosecutions had the necessary power and that, in any event, section 76 of the Magistrate’s Court (Lagos) Ordinance applied.

6. On the 14th July, 1961, the Chief Magistrate referred the following questions (as amended) to this Court, in accordance with section 108 of the Constitution:

1. Whether the Director of Public Prosecutions has power, having regard to section 97 of the Constitution, to instruct a private legal practitioner to appear in a criminal case on his behalf;

2. Whether, if the Director of Public Prosecutions has such power and has instructed a private practitioner, he or a member of his staff can appear with the legal practitioner so instructed.

7. This Court being of the opinion that the questions involve substantial questions of law hereby refer to the Federal Supreme Court agreeably with section 108 of the aforesaid Constitution.

The reference does not follow the form now prescribed by Order VI Rule 1 of the Rules of the Federal Supreme Court, 1961, but nothing turns on the point. I mention it only lest the form used in this case might otherwise be followed elsewhere. Section 97 of the Constitution is as follows:-

97.

(1) There shall be a Director of Public Prosecutions for the Federation, whose office shall be an office in the public service of the Federation.