Ishmael Amaefule & Anor V. The State (1988) LLJR-SC

Ishmael Amaefule & Anor V. The State (1988)

LawGlobal-Hub Lead Judgment Report

B. WALI, J.S.C.

On 22nd February 1984 the two appellants along with 7 others were arraigned before the Chief Magistrate’s Court on a six count charge of conspiracy, stealing, forgery and destruction of evidence. They all pleaded not guilty to the charges and also elected to be tried summarily. The case was then adjourned to 27th April 1984.

On 24th April 1984 the record of the learned Chief Magistrate reads –

“Accused persons present.

Insp. Asajioku for prosecutions.

Mr. B.A. Njemanze for the 1st and 2nd Accused.

D Mr. N. Okoronkwo for 5th, 6th, 7th, 8th and 9th Accused.

Mr. Obizue for 3rd and 4th Accused.

COURT: Case adjourned to 29th June 1984.

(Sgd) R. A. Wilson (Mrs.)

CHIEF MAGISTRATE”.

As the record shows, the case came up on 18th January 1985 (but not on 29th June 1984 as it was scheduled to), the prosecution was on that date represented by Sergeant Eke, the 1st and 2nd accused by G .C. Iwuh, the 3rd and 4th accused by Obizue while the 5th, 6th, 7th, 8th and 9th accused were represented by Okoronkwo. The learned Chief Magistrate on that date remarked that-

“Prosecution informs court that the case is still with the Director of Public Prosecutions who called for it. Director of Public Prosecutions should prosecute the case as it seems the file is not coming back and it is not fair for the parties to continue wasting time in this court. The original case file or any other document relating to this case be transmitted to the D.P.P. for necessary action. Inventory of Exhibits to be also forwarded.

Case adjourned sine die.”

As the record shows again, the learned Director of Public Prosecutions purporting to comply with sections 18(ee) and 18(jj) of Criminal Procedure Miscellaneous Provisions Edict No. 19 of 1974 applicable in Imo State, wrote “Exhibit B” (dated 2nd October 1984) to the learned Chief Magistrate requesting “that the proceedings of the above named case be stopped and the case file and all statements or documents tendered during the proceedings to be transferred to the Attorney-General for the purpose of preparing proofs of Evidence in respect of the charge(s) with a view to preferring information.” And on 4th August 1985 the learned Attorney-General of Imo State filed an information containing six counts against 4 of the 10 accused persons originally arraigned before the Chief Magistrate and whose names were given as follows-

(1) Ishmael Amaefule

(2) Cyril Amaefule

(3) Emeka Nwosu

(4) Ignatius Okeke

On 18th November, 1985, the case came up before the High Court, Owerri. All the four accused were represented by different counsel of their own choice and with the exception of 3rd accused all were present in court. All the four accused were granted bail on the following five stringent conditions:

“(i) In the sum of N20,000.00 with one surety in the same amount

(ii) The surety must have landed property within Owerri Urban Area

(iii) The surety must be resident within Owerri Urban Area

(iv) The surety must swear to affidavit of means and must disclose details of his title deed in respect of any landed property he puts up for purposes of this order or the receipts by which he paid rates and other official charges in respect of the property within the last three years.

(iv) The application for bail by the surety must be recommended by a solicitor.”

It was then adjourned to 28th November 1985 by the learned judge. On 28th November 1985, when 3rd accused failed to show up again the learned judge revoked the bail granted to the accused. He ordered 1st, 2nd and 4th accused to be remanded in prison custody while he made an order for a Bench Warrant to issue for the arrest of the 3rd accused person. He adjourned the case to 6th February 1986.

Within the interval, the 4 accused persons filed a motion on notice in the High Court praying that the information be quashed on the ground that the provision of section 18 (ee) of Criminal Procedure (Miscellaneous Provisions) Law No. 19 of 1974 was not complied with. It was contested by learned counsel on both sides and same was dismissed in a considered Ruling delivered by the learned trial Judge.

The 1st and 2nd accused who will from now be referred to as the appellants then appealed to the Court of Appeal Enugu against the Ruling of the trial Court. (In its Judgment delivered on 2nd June 1987 the Court of Appeal held that-

“the prosecution in the Magistrate’s Court was terminated in substantial compliance with the relevant provisions of Edict No. 19 of 1974 when the case file and the necessary documents were ordered to be transmitted to the Attorney-General who thereafter filed the information in the High Court”, and dismissed the appeal.

Two grounds of appeal were tiled. Briefs of Arguments by the appellants and the respondent for and against the said grounds were filed and exchanged. At the hearing of the appeal the issue canvassed in the briefs were further orally elaborated upon.

In the brief filed learned Senior Counsel for the appellants formulated the following 3 issues for determination:-

“2. ISSUES FOR DETERMINATION

(1) Whether the Court of Appeal is right in holding that on the facts before it that the information filed in the High Court of the Owerri Judicial Division against the appellants and others who had elected to be tried summarily complied with the mandatory provision of section 18 (ee) of Law No. 19 of 1974

(2) Whether the Court of Appeal is right in holding that the prosecution complied substantially with the relevant provisions of Edict No. 19 of 1974

(3) Whether the Court of Appeal is right in Law in holding that the burden was on the appellants to subpoena the Chief

Magistrate’s Court Owerri to tender the original of a letter dated 2nd of October 1984 purportedly written by the Director of Public prosecutions terminating the proceedings before the Chief Magistrate’s Court, when what was tendered in evidence by the prosecution was an uncertified office copy”

The respondent on his part formulated two issues which are –

“(a) whether or not the information filed by the Attorney-General of Imo State in the Owerri High Court in respect of this case was in conformity with the provisions of the Criminal Procedure (Miscellaneous Provisions) Law of No. 19 of 1974 of East Central State which is applicable to Imo State of Nigeria.

(b) whether or not Exh.B, a file copy of the letter sent by the Director of Public Prosecutions to the learned Chief Magistrate ordering her to stop proceedings in the case before her, was properly tendered and admitted in Evidence,”

In my view the three issues formulated by the appellants can be condensed into two issues, as done by the respondent. The purport of the complaint in the two grounds is against non compliance with provisions of sections 18(ee) and 18(jj) of the Criminal Procedure (Miscellaneous Provisions) Law No. 19 of 1974, and the admission of Exhibit B in evidence.

Under ground 1 which is adequately covered by issue I of the Respondent’s brief, it was the submission of learned counsel for the appellants that failure by the prosecution to strictly adhere to the provisions of sections 18(ee), 18(jj) and section 5 of the Criminal Procedure (Miscellaneous Provisions) Law, No. 19 of 1974 rendered the fresh information filed before the High Court nugatory. He further buttressed this submission by referring to sections 33(4) and 274 of the 1979 Constitution and the decided case of Onu Okafor v. The State (1976) 5 S.C.13.

In reply to this, learned Counsel for the respondent submitted that the information filed by the prosecution in the Owerri High Court against the appellants who among with others had elected to be tried summarily conforms with the provisions of sections 18(ee) and 18(jj)(2)(c) of the Criminal Procedure (Miscellaneous Provisions) Law No. 19 of 1974 of Imo State, He contended that the Hon. Attorney-General of Imo State, in exercising his powers under section 191 of the 1979 Constitution is only expected to follow the procedures laid down for the exercise of such powers as long as they are not in conflict with section 191 of the 1979 Constitution. He said sections 18(ee) and 18(jj)(2)(c) were fully complied with. He also made particular reference to section 5(c) of Law No. 19 0f 1974 which he said conferred on the Hon. Attorney-General power, in special circumstances he considers appropriate, to file information in the High Court, sections 18(ee) and 19(jj)(2)(c) notwithstanding. He cited the following cases in support: Attorney-General, Kaduna State v. Hassan (1985) 2 N.W.L.R. PT.8 p. 483 and The State v. Ilori & Ors. (1983) 2 S.C.155.

As correctly stated by Aseme, J.C.A. in his lead Judgment, the purpose of enacting Law No. 19 of 1974 was to make amendment to certain sections of the Criminal Procedure Law Cap. 31 dealing with the preliminary Inquiry into certain categories of offences before same were sent to the High Court for trial.

Section18(ee) of the Criminal Procedure (Miscellaneous Provisions) Law No. 14 of 1974 provides that-

“A law officer, where any charge of indictable offence is being proceeded with summarily by a Magistrate under the provision of this part, may at any time before the decision thereof, by order in writing, under his hand, require such Magistrate to stop further proceedings and to transfer the case to another Magistrate within the same Chief Magisterial District, or to transmit the case file and all statements and documents mentioned in section 7 of the Criminal Procedure (Miscellaneous Provisions) Law 1974 made or tendered during the hearing to the Attorney-General for the purpose of preparing proofs of evidence in respect of the charge with a view to preferring an information.”

Learned Counsel for the appellants rightly conceded in my view, that section 18(ee) supra confers two functions on a law officer, and that is, he may by order in writing under his hand

(1) require the Magistrate before whom the case is pending to stop any further proceedings and transfer the same to another Magistrate within the same Chief Magisterial District,

(2) or to transmit the case file and all documents mentioned in section 7 of Law No. 14of 1974 made or tendered during the hearing to the Attorney-General for the purpose of preparing proofs of evidence in respect of the charge for preferring an information.

With regard to (1) above learned Counsel interpreted the word “may” to be permissive in the con it is used, and therefore the law officer’s discretion remained unfettered. But where such law officer decides to bring the proceedings of the summary trial in the Magistrate Court to an end for prosecution of the same offence in the High Court, the word “may” changes meaning and becomes shall, thus becoming mandatory for him to do that in writing under his hand.

With due respect to the learned Counsel, I do not seem to agree with this last construction. The wording of the section is clear; and it conveys what it means. The law officer has the option of either making oral application before the court for the transfer of the proceedings from one Magistrate Court to another within the same Chief Magisterial District, or to apply orally for stopping proceedings before that court to enable him prepare proofs of evidence with a view to filing information in the High Court for trial of the same offence. The law officer can elect to apply any of the two methods by writing under his hand. Section 191 of the 1979 Constitution also lend support to my views expressed above. It provides thus-

“191 – (1) The Attorney-General of a State shall have power –

(a) to institute and undertake 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 Law of the State;

(b) to take over and continue any such criminal proceedings that 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.”

And section 191(2) empowers the Attorney-General to exercise the powers conferred on him by section 191(1) by himself or through officers of his department. Section 191(1) of the 1979 Constitution has already been interpreted by this Court in its several decisions but see particularly The State v. Ilori & Ors. (1983) 2 S.C. 155.

It is not the contention of the learned Counsel for the appellants that the Director of Public Prosecutions is not an officer in the department of the Attorney-General. The fact that there was no compliance with section 18(ee) of Law No. 19 of 1974 did not invalidate the information filed in the High Court by the learned Director of Public Prosecutions. It is saved by section 18(jj)of the law and which replaces section 340(2) of the Criminal Procedure Law Cap. 31. The amended section 18(jj)(2) provides thus-

“(2) Subject as herein after provided no information charging any person with an indictable offence shall be preferred unless either

(a) the information is preferred after the preparation of the proof of evidence in the charge or

(b) the information is preferred pursuant to an order made under part XXI to prosecute the person charged for perjury, or

(c) the information is preferred in cases other than those mentioned in paragraph (a) and (b) above where because of the special circumstances of such cases the Attorney-General considers that information should be filed without recourse to the procedure referred to in paragraph (a) above:

Provided that the information is preferred after preparation of the proofs of evidence it may include either in substitution for or in addition to counts charging the offence for which the proofs of evidence founded on facts or evidence disclosed in the proofs of evidence being counts which may lawfully be joined in the same information.”

The combined effect of section 191 (1) (a) of the 1979 Constitution and section 18(jj)(2)(c) supra, is enough to sustain the steps taken by the Director of Public Prosecutions to get the case to be prosecuted in the High Court. The fundamental rights of the appellants vis-a-vis fair hearing is in no way tampered with by the procedure adopted in his case.

Both sections 18(ee) and 18(jj) supra do not specifically state that before an information is filed in the High Court, the proceedings in the lower Court must first be terminated. Section 18(ee) particularly speaks of a stop of the pending proceedings in the Magistrate’s Court, which means termination. To adjourn a case sine die and transfer documents involved in the proceedings to the Director of Public Prosecutions for the latter to take appropriate action is at the highest in my opinion tantamount to a stay of proceedings. This is why I said earlier on that section 18(ee) of Law No. 19of 1974 was not complied with.

On the complaint as regards double jeopardy and abuse of process. I agree with Aseme, J.C.A., in the lead judgment where he said-

“The Defence has alleged in ground 6 of the objection that “the information filed on the same facts is an abuse of process and exposure of the accused to double jeopardy”, but this is a misconception. Double jeopardy arises in a situation where a person is purported to have been tried twice. Abuse of process means to set up in any way a case which has already been decided by a court of competent jurisdiction. Jowit Laws as English Law further defines Abuse of process as actions manifestly frivolous brought against good faith. See Edmunds vs. Attorney-General (1978) L. J. Ch. 345.”The case of Onu Okafor v. The State (1976) 5 S.C. 13 is not directly apposite to the situation and facts of this case, for in that case what was in issue was non-compliance with section 18(jj) of Law No. 19 of 1974 which is not the case here. No substantial miscarriage of justice has been caused to the appellants in the present case – Sylvester Ogbonna v. The State (1985) 2 S.C. 289. The appeal fails and it is dismissed.A. NNAMANI, J.S.C.: I had a preview of the judgment just delivered by my learned brother WALI, J.S.C. and I agree with his conclusions. The facts of this case, which are not really in dispute, have been set down by my learned brother and I need not repeat them except such of them as I need for this concurring comment.

In the appeal in this Court, learned Senior Advocate for the appellants, Mr. Ikeotunonye, set down 3 issues for determination. I intend to deal with only issues 1 and 2.

These were in the following terms:-

“1. Whether the Court of Appeal is right in holding that on the fact before it that the information filed in the High Court of the Owerri Judicial Division against the appellants and others who had elected to be tried summarily complied with the mandatory provisions of Section 18(e)(e) of Law No. 19 of 1974.

2. Whether the Court of Appeal is right in holding that the prosecution complied substantially with the relevant provisions of Edict No. 19 of 1974”

The argument in this Court was centred on the provisions of Edict No. 19 of 1974 i.e. the Criminal Procedure (Miscellaneous Provisions) Law No. 19 of 1974 which by virtue of Section 274 of the 1979 Constitution was an existing law in 1984 when this matter started in an Owerri Magistrate’s Court. One has to look at Sections 18(e)(e) and 18(jj). Section 18(e)(e) provides as follows:-

“A law officer, where any charge of an indictable offence is being proceeded with summarily by a magistrate under the provisions of this part may at any time before the decision thereof, by order in writing under his hand, require such magistrate to stop further proceedings and to transfer the case to another magistrate within the same Chief Magisterial district or to transmit the case file and all statement and documents mentioned in Section 7 of the Criminal Procedure (Miscellaneous Provisions) Edict, 1974, made or tendered during the hearing to the Attorney-General for the purpose of preparing the proofs of evidence in respect of the charge with a view to preferring an information.”

The accused persons were first arraigned before the Chief Magistrate Court, Owerri on 22nd February, 1984. After several adjournments, the suit came up for hearing on 18th January, 1985. On that date it is recorded thus,

“Prosecution informs Court that the case file is still with the Director of Prosecutions who called for it.”

Following which the learned Chief Magistrate made the following order:-

Director of Public Prosecutions should prosecute the case as it seems the file is not coming back and it is not fair for the parties to continue wasting time in this Court. The original case file or any other document relating to this case be transmitted to Director of Public Prosecutions for necessary action. Inventory of Exhibits to be also forwarded. Case adjourned sine die.”

In the course of the case it was claimed by the Respondent that a letter dated 2nd October, 1984 was sent by the Director of Prosecutions, Imo State to the Chief Magistrate. The letter was in these terms:-

“2nd October, 1984

The Chief Magistrate,

Chief Magistrate’s Court,

Owerri.

OW/299C/84:COMPOL VS Ishmael

Amaefule and Ors

Pursuant to Section 18(e)(e) and 18(jj)(2)(c) of Criminal Procedure Miscellaneous Provisions Edict No. 19 of 1974, I ask that the proceedings of the above named case be stopped and the case file and all statements or documents tendered during the proceedings be transferred to the Attorney, General for the purpose of preparing Proofs of Evidence in respect of the charge(s) with, view to preferring an information.

Sgd. J. C. Njoku,

Director of Public Prosecutions”

On 14th August, 1986, the Attorney-General of Imo State filed an information against 4 accused persons, not against 5 other persons charged with them in the Magistrate Court. The total number of the counts on the information was ten as against the six in the Magistrate Court. Learned Senior Advocate then filed a motion to quash the information. This was refused by the High Court and the Court of Appeal, hence the appeal to this Court.

The main contention of Mr. Ikeotuonye is that Exhibit B was an after thought and was never sent to the Chief Magistrate. There was therefore no compliance with Section 18(e)(e) of Law No. 19 of 1974. He further contended that for an information to be properly filed against the appellants who did not elect to be tried in the High Court, the proceedings in the Magistrate’s Court must be terminated in strict compliance with the provisions of Section 18(e)(e) of Law No. 19 of 1974.

It seems quite clear to me that the letter Exhibit B could not have reached the Chief Magistrate on 18th January 1985, when she finally dealt with this case. If she had seen that letter, it would have been strange in the extreme for her to be informed on that day that the Director of Public Prosecutions still had the case file. She also would not have made the order in the terms in which she made it. I am of the view, therefore, that the order she made was not in compliance with Section 18(e)(e) of Law No. 19 of 1974. The result is that the case was never terminated in the Magistrate’s, Court and is pending there. To this extent the point made by the learned Senior Advocate is well taken. The Court of Appeal in my view was in serious error in holding that there had been substantial compliance with Section 18(e)(e) of Law No. 19 of 1974.

But this is by no means the end of the matter. The further question which arises for consideration is whether the situation I have stated automatically means that the information filed by the Attorney-General must be quashed. It is at this stage that one has to have recourse to the provisions of Section 191 of the Constitution of the Federal Republic of Nigeria, 1979. Sub-Sections (1) and 3 of that Section provide as follows:-

“(1) The Attorney-General of a State shall have power (a) to institute and undertake 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 law of the House of Assembly…………

(3) In exercising his powers under this Section the Attorney General shall have regard to the public interest, the interests of justice and the need to prevent abuse of legal process”

Although in the course of argument, both learned counsel were of the view that under this section the power of the Attorney-General to file an information could not be questioned and that nothing in Edict No. 19 of 1974 could derogate from that power, I find it necessary to examine the issue more closely. At common law, the power of the Attorney-General to institute and discontinue criminal proceedings was quite wide and his exercise of such powers was largely unfettered. It is one within his province. Although in State v. S.O. Ilori and 2 Ors. (1983) 2 S.C. 155 this Court was mainly concerned with the entry of a nolle prosequi, this Court took the opportunity to examine the true meaning of Section 191 of the 1979 Constitution, particularly subsection 3 thereof. Apart from noting the extremely wide powers conferred on the Attorney-General by that section of the Constitution, this Court was of the view that it merely restated the position of the Attorney (General at common law and in the 1960 and 1963 pre -1979 Constitutions of Nigeria. It is pertinent too to note that in stating the proper meaning and import of Subsection 3 of Section 191, this Court was of the view that this applied to the whole of Section 191 not just to subsection 1(b) which dealt with nolle prosequi with which it was concerned. It would be useful to take a few passages from the judgment of this Court in that case so as to underline the extensive powers to institute and discontinue proceedings which the 1979 Constitution deliberately vested on the Attorney-General.

On the extensive and unfettered powers of the Attorney-General, Eso, J.S.C. who wrote the Court’s lead judgment said at page 178,

“The pre-eminent and incontestable position of the Attorney General, under the common law, as the Chief law officer of the State, either generally as a legal adviser or specifically in all court proceeding to which the State is a party, has long been recognized by the Courts. In regard to these powers, and subject only to ultimate control by public opinion and that of Parliament or the legislature, the Attorney-General has, at common law, been a master unto himself, law unto himself, and under no control whatsoever, judicial or otherwise, vis-a-vis his powers of instituting or discontinuing criminal proceedings.”

In that suit, it was contended that the provisions of subsection 3 of Section 191 of the 1979 Constitution were in effect a pre-condition to the exercise of the powers of the Attorney-General, or in another sense, that they raised a rebuttable presumption which an aggrieved person can seek to rebut impugning the exercise of those powers in proceedings in a Court. This Court resolutely rejected both notions. In its view, the matters in Subsection 3 of Section 191 were matters which the Attorney-General was to have regard to in the exercise of his powers under Section 191. The sanction for any failure to abide by those matters did not lie in any review by the Courts but in the adverse opinion of public opinion and his ultimate removal by his appointor. Again in the words of Eso, J.S.C. at page 186,

“In other words, under the provisions of sub-section (1) of Section 191 of the 1979 Constitution, the Attorney-General, as in the period before the 1979 Constitution, still has an unquestioned discretion in the exercise of his powers to institute or discontinue criminal proceedings. His common law pre-eminent and incontestable position in this regard is still preserved by that provision and notwithstanding sub-section (3) thereof, which is a restatement of the law up to 1979, he is still not subject to any control, in so for as the exercise of his powers under Section 191 of the Constitution is concerned and, except for public opinion) and the reaction of his appointor, he is still, in so far as the exercise of those powers are concerned, law unto himself. To my mind therefore, sub-section (3) of 191 of the 1979 Constitution has in no way altered the pre-1979 Constitutional position of the Attorney-General”‘

He continued at page 189,

“With respect, I do not share the view of Kazeem, J.C.A. where the learned Justice said that “whenever an aggrieved person complains of an infraction of his fundamental right and that the Attorney-General has failed to have regard for those safeguards in exercising his powers, and he can successfully prove it… the courts in this country in exercise of their wide powers under Section 6(6)(b) of the 1979 Constitution can inquire into such complaint and grant appropriate remedies.” With great respect, the Court of Appeal is in complete misconception of the provision of sub-section (3) of Section 191 of the 1979 Constitution………”

In my own contribution at page 205, I expressed the view which I still hold that –

“I do not think that any rebuttable presumption [such as was decided by the Federal Court of Appeal in The State vs Adokole Akor and Ors (1981) 2 N.C.L.R.710] arises with respect to the matters set down in Section 191(3) of the 1979 Constitution. I think that the matters set down in that section of the Constitution are matters which the Attorney-General ought to take into consideration in exercising his powers therein and I cannot put it higher than an assumption that he has duly considered them.”

I am of the view that the far reaching opinion of this Court on the import of Sub-section 3 of Section 191, whatever may be the position at Common Law, puts the exercise of the powers of the Attorney-General under Section 191 outside the powers of the Courts. In this connection, I draw no distinction between the decision to exercise those powers and the manner in which it has been exercised. If the Attorney-General in exercising his powers under Section 191(1)(a), i.e. institution of proceedings, commits abuse of legal process, it would seem to me that if the Courts cannot review the matters he is supposed to have had regard to under Sub-Section 3 of Section 191, the only sanction would be his removal by his appointor.

To return to the instant suit, I can see no basis on which the power of the Attorney-General of Imo State to file the information he filed can be challenged. It is not even certain to me that there is on the face of the papers a case of abuse of process which can be said to be oppressive of the accused persons. First of all, not all the accused persons in the original charge in the Magistrate Court are included in the information filed. Secondly, the counts in the information are slightly different from the counts in the charge in the Magistrate Court. Thirdly, this is not a case in which it can be said that two indictments are pending in two courts – although what is pending in the Magistrate Court contains indictable offences. Fourthly, the charge in the Magistrate Court was adjourned sine die. The papers have been sent to the Director of Public Prosecutions. It is not as if the proceedings had been adjourned to a definite date. It is within the power of the Attorney-General of Imo State, having filed information in the High Court, to take legal steps to terminate the proceedings still pending in the Magistrate’s Court.

In the course of writing this concurring judgment, my attention was drawn to Section 72 of the Criminal Procedure Law, Cap. 31 Laws of Eastern Nigeria 1963 applicable to Imo State. That section provides as follows:”

Notwithstanding anything in this Law contained the Attorney-General may exhibit to the High Court information for all purposes for which His Majesty’s Attorney-General for England might have, before the enactment of the Crown Proceedings Act 1947, exhibited information in the High Court of Justice in England.

2. Such proceedings may be taken upon every such information as could lawfully be taken in the case of similar information filed in England by the Attorney-General of England so far as the circumstances of the case and the practice and procedure of the High Court will admit”

It seems that this Section of the Criminal Procedure law was not amended by the Criminal Procedure (Miscellaneous) Provisions Edict No. 19 of 1974 although the terms of Section 72 of Cap. 31 seem to be in conflict with Section 18(jj) of the Edict. Indeed it would appear that Sections 18(e)(e) and 18(jj) of the Edict were intended to supercede that Section of the law. Section 18(jj) of the Edict replaced Section 340(2) of Cap. 31 and reads as follows:-

(2) “Subject as hereinafter provided, no information charging any person with an indictable offence shall be preferred unless either –

(a) the information is preferred after the preparation of the proof of evidence in the charge, or

(b) information is preferred pursuant to an order made under part xxxi to prosecute the person charged for perjury, or

(c) the information is preferred in cases other than those mentioned in paragraphs (a) and (b) above where because of the special circumstances of such basis the Attorney-General considers that the information should be filed without recourse to the procedure referred to in paragraph (a) above; provided that where the information is preferred after the proof of evidence……..”

It is fairly settled that in matters of procedure recourse will only be had to the practice in England where there is no statutory provision covering the particular matter in this country. I do not think that in the face of Sections 18(e)(e) and 18(jj)(2)(c) of Edict No. 19 of 1974 applicable in Imo State, Section 72 of Cap.31 was still applicable.

In any case, because of the view I have taken of the extent of the Attorney-General’s powers to institute criminal proceedings as provided in Section 191 of the Constitution, neither Section 18(e)(e) nor Section 72 of Cap.31, even if it is still applicable, can derogate from those powers. Accordingly, I hold that the information filed by the Attorney-General is by virtue of Section 191 of the Constitution, and perhaps Section 18(jj) of Edict No. 19 of 1974, valid. The point taken by the learned Senior Advocate for the appellants, is well taken, but the appeal is dismissed. The judgment of the Court of Appeal is affirmed but for different reasons. I hereby order the Attorney-General of Imo State to take immediate steps to withdraw the charge pending in the Chief Magistrate’s Court Owerri against the appellants herein.

C. A. OPUTA, J.S.C.: I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother Wali, J.S.C. Is this case just another judicial example of “much ado about nothing”, just another mighty judicial storm in a small procedural tea cup or is it substantial in the sense that it calls for a hard look at the powers of the Attorney-General to initiate proceedings and circumstances under which the exercise of those powers can successfully be questioned The facts do not seem to be in dispute as the respondent’s Brief would seem to suggest. The respondent filed its Brief before receiving the appellants’ Brief. This is rather a queer and awkward procedure. A respondent’s Brief is usually an answer to the appellant’s Brief. Can anyone answer to that which he has not even seen I suppose not. But having put the cart before the horse, learned counsel for the respondent could have done better if she filed a Reply Brief. But she did not. I shall therefore rely on the appellant’s Brief for the correct statement of the facts. Those facts are as follows:-

1. On the and of February 1984, the Appellants and 5 others were arraigned before the Chief Magistrate Court Owerri on a six count charge of conspiracy, stealing, forgery and destroying evidence.
2. Before the Chief Magistrate the Appellants and the other accused persons exercised their right of election. Each elected summary trial before the Chief Magistrate. Their case was thus properly pending before the Chief Magistrate Court with effect from the 22nd February 1984 – the date of arraignment
3. On the 18th January 1985 the learned trial Chief Magistrate adjourned the case properly pending before her sine die and made the following notes:-

“Prosecution informs Court that the case is still with the Director of Public Prosecutions who called for it. Director of Public Prosecutions should prosecute the case as it seems the file is not coming back and it is not fair for the parties to continue wasting time in this Court. The original case file or any other document relating to this case be transmitted to the Director of Public Prosecutions for necessary action. Inventory of Exhibits to be also forwarded”. Italics mine to emphasize (if not the letter) the spirit of the order made by the Chief Magistrate.

4. On the 18th November 1985, the appellants were arraigned before the High Court Owerri on an information filed by the Attorney- General. No plea was taken as the 3rd accused was not present in Court.
5. On the 28th of November 1985, all the accused persons except the 3rd accused were present in Court. Because of this the Court cancelled the bail it granted earlier on to the appellants.
6. After a number of applications the High Court granted bail to the appellants.
7. On the 14th August, 1985 the Attorney-General of Imo State filed an information against the appellants. It is not in dispute that “some of the charges repeated the same offences for which the Appellants were arraigned in the Chief Magistrate’s Court”

(see p.3 lines 12-13 of record of proceedings).

8. Before plea was taken in the High Court the appellants filed a motion on notice to quash the information filed on the 14th August 1985 on the ground that it offended against S.18(ee) of the Criminal Procedure (Miscellaneous Provisions) Law No. 19 of 1974.
9. The learned trial judge, Chianakwalam, J. on 27/2/86 over-ruled and dismissed the objections of the appellants holding that “they are wholly devoid of substance and merit.”
10. The appeal of the appellants to the Court of Appeal Enugu Division against the ruling of Chianakwalam, J. of 27/2/86 was dismissed on 2nd day of June 1987.

The appellants have now appealed to this Court on two grounds of error in law.

Mr. Iketuonye, S.A.N. for the appellants submitted two Issues for Determination namely:-

(1) Were the proceedings in the Chief Magistrates’ Court Owerri terminated before the Attorney-General filed his information against the appellants

(2) If the answer to Issue No.1 above is No – Does the information so filed constitute an abuse of process

Issue No.1

It is common ground that:-

(i) The appellants were arraigned before the Chief Magistrates’ Court Owerri.

(ii) That in the said Court the appellants were put to their election and each exercised his constitutional right of election and each elected summary trial before the Chief Magistrate.

Under Section 191(1) of the 1979 Constitution as amended, the Attorney-General of Imo State had the right to take over and continue Charge HOW/57C/85 then pending before the Chief Magistrate or else discontinue same. If Charge HOW/57C/85 were discontinued, it ought to so appear on the record. It is therefore safe to assume that the Attorney-General of Imo State did not exercise his power under S.191(1) of the 1979 Constitution either to take over and continue the prosecution of Charge No. HOW/57C/85 or else discontinue it.

There is however a counter-affidavit sworn to by one Ndukwe Agwu, Senior Clerical Officer, Ministry of Justice, Owerri purporting to show that a letter dated 2nd October, 1984 signed by the Director of Public Prosecutions was addressed to the Chief Magistrate in compliance with the provisions of Section 18(ee) of the Criminal Procedure (Miscellaneous Provisions) Law No. 19 of 1974. Section 18(ee) above provides as follows:-

S.18(ee) – “A law officer, where any charge of an indictable offence is being proceeded with summarily by a Magistrate under the provisions of this part may, at anytime before the decision thereof, by order in writing under his hand, require such Magistrate to stop further proceedings and to transfer the case to another Magistrate within the same Chief Magisterial district or to transmit the case file and all statements and documents mentioned in Section 7 of the Criminal Procedure (Miscellaneous Provisions) Edict, 1974 made or tendered during the hearing, to the Attorney-General for the purpose of the proofs of evidence in respect of the charge with a view to preferring an information.”

What, may I ask, is the purpose of Section 18(ee) above Is it not the desirability of terminating the criminal prosecution in one Court before prosecuting the same persons on the same or identical offences in another Court It will look a bit more tidy to end the proceedings in one Court before starting fresh proceedings in another Court.

The question that should now be asked is: Were the proceedings in Charge No. HOW/57C/85 terminated by Exh. B The answer from the record of proceedings before the Chief Magistrate is No. The case was merely adjourned sine die. A case adjourned sine die is still pending before the Court that adjourned it. Exhibit B (even if the original was tendered) contained merely a request “that the proceedings of the above-named case be stopped”. Exhibit B is not proof that the proceedings were in fact stopped. It is therefore beyond doubt that the criminal proceedings against the appellants are still pending in the Chief Magistrate’s Court Owerri and were pending when the information charging the appellants along with others with the same or similar offences in the High Court was preferred. One effect of this is to nullify the election of the appellants to be tried summarily or to proceed against them in two different Courts at one and the same time for the same offences. It is under the shadow of the above that Issue No.2 ought to be considered.

Issue No.2

Was the information filed in the High Court in this case during the pendency of charge No. HOW/57C/85 an abuse of process

No one is doubting the very wide powers of the Attorney-General of a State under Section 191(1) of the 1979 Constitution. But just because the powers are very wide that itself, is all the more reason why their exercise should be carefully watched. All proceedings in poenam are strictissimi juris and where a particular procedure has been provided by law, that procedure should be strictly adhered to. And a party accused has the right to insist on that particular procedure as a matter of right which he cannot be deprived against his will: see Cockburn, C. J. in Martin v. Mackonochie (1878) L.R. 3 Q.B. 775. Can the Attorney-General in this case deprive the appellants of the right of election or nullify their exercise of that right in Charge No. HOW/57C/85 If the Attorney-General deprives the appellants of that right by filing (simultaneously and along with the pending charge in the Magistrates’ Court) a fresh information, will that not be an abuse of process Abuse of Process:

Abuse of process of the Court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive

Abuse of process can also mean abuse of legal procedure or improper use of legal process. There is nothing on record to suggest that the Attorney-General of Imo State in preferring the information, the subject-matter of this appeal, acted from improper motives or was wanting in bona fides. No. It cannot be argued that the information is frivolous and vexatious. But is it not “oppressive” if not in fact at least in law to deprive the appellants their right of election by filing the information not in accordance with Section 18(ee) of the Criminal Procedure (Miscellaneous Provisions) Law No. 19 of 1974 which should have properly terminated Charge No. HOW/57C/85 and with it the election of the appellants to be tried summarily The answer to the above question will surely depend on whether abuse of process has in any event to contain the absence of bona fides as its fundamental element. On Every careful consideration, I am forced to the conclusion that to amount to an abuse of process, the proceeding or step in the proceeding complained of, will in any event, be lacking in bona fides; it has to be an improper use or perversion of process after it had been issued. The term abuse of process has an element of malice in it. It thus has to be a malicious perversion of a regularly issued process civil or criminal, for a purpose, and to obtain a result not lawfully warranted or properly attainable thereby. These elements are completely lacking here.

The case of The State v S. O. Ilori & Ors. (1983) 1 SC N .L.R. 94 and A.G. Kaduna v Hassan (1985) 2 N.W.L.R. 483 have been mentioned by the Court of Appeal. Hassan’s case supra does not seem to supply the answer to the solitary question posed in this appeal – Was the information now complained of an abuse of process simply because the proceedings in the Chief Magistrates’ Court were still pending Hassan’s case dealt inter alia with the question of whether in the absence of an incumbent Attorney-General, the Solicitor-General of a State could exercise the powers which Section 191 of the 1979 Constitution reserved solely for the Attorney-General. The answer of this Court was that the Solicitor-General without specific delegation from the Attorney-General could not exercise any of the powers of the Attorney-General under Section 191 of the 1979 Constitution. If therefore there was no Attorney-General there will be no one to make the necessary delegation.

It is however Ilori’s case supra that deals directly with the issue for determination in this appeal. Ilori decided “that the test to be adopted under subsection 3 of Section 191 of the 1979 Constitution as indeed at Common Law is a subjective one i.e it is the exercise of the discretion of the Attorney-General according to his own judgment.” We have to assume that the Attorney-General in exercising his powers under Section 191(i) and (ii) of the 1979 Constitution first and foremost heeded to and took into consideration Section 191(3) of the 1979 Constitution. We have not in this appeal been invited to review and over-rule decision in Ilori’s case supra. With Ilori supra as the 8 law at present, then the appellants’ attack on the information filed by the Attorney-General in this case can hardly be sustained. The appeal must therefore fail. I must however observe that the point taken by Iketuonye, S.A.N. was well taken but that it could not and did not invalidate the information now pending at the Owerri High Court. The final result is that they are two cases pending against the appellants viz:-

(i) Charge HOW/57C/85 pending in the Chief Magistrates’ Court Owerri and;

(ii) The information filed in the High Court Owerri.

The Attorney-General has now to decide which of these he will be prosecuting. The likelihood however is that the charge in the Magistrates’ Court will be withdrawn properly and the information in the High Court proceeded with.

For the reasons given above and for the fuller reasons given in the lead judgment of my learned brother Wali, J.S.C. which I now adopt as mine, this appeal fails and should be dismissed. It is hereby dismissed. The judgment of the Court of Appeal, Enugu Division is hereby affirmed.

SC.121/1987