Ndi Okereke Onyuike V. The People Of Lagos State & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment)

On the 23rd March, 2012, the Hon. Justice C. A. Balogun of the Lagos State High Court of Justice holden at Court 51, Criminal Division, delivered a considered Ruling against the Appellant and five others and in favour of the 1st Respondent then Prosecution/Respondent. The Appellant was the 1st Defendant/Applicant. In this judgment the Appellant is referred to simply as the Appellant and the 1st Respondent simply as the 1st Respondent; (the other Respondents being nominal Respondents).

The brief facts of the case are that eight counts of charges had been crafted against the Appellant and five others by the Attorney General of Lagos State (hereafter refer simply as A-G). An application was then made to the Lagos State High Court coram Balogun J. for leave to prefer the charges.

The eight counts of charges were brought under the Administration of Criminal Justice Law of Lagos State, 2007 alleging the offences of conspiracy to steal and stealing. The offences are said to be respectively contrary to Sections 516 and 390(7) of the Criminal Code of Lagos State Cap C17 vol.2 Laws of Lagos State 2003. The Appellant heard of the application in the vine yard.

Before a formal arraignment, the Appellant challenged the competence of the charges preferred and prayed for an order quashing same. The court upon taking arguments from both sides dismissed the application in its entirety. The matter was then adjourned for the arraignment of the Appellant and the other suspects.

Dissatisfied by the said Ruling, the Appellant filed a Notice of Appeal dated 4th April, 2012 with 12 Grounds of appeal. Both parties each filed and adopted their respective brief of argument in compliance with the practice before this Court.

Learned senior counsel for the Appellant, Chief Wole Olanipekun, SAN formulates five issues for determination, and the learned Senior Counsel for the Respondent Lawan Pedro, SAN (Solicitor General of Lagos State (here after refer simply as SG) adopts the five issues of the Appellant which are follows:-

1. Whether the 1st Respondent is a competent entity that can prefer criminal charges against the Appellant. (Ground 1).
2. Whether the charge before the lower court was/is not incompetent and vitiated by non-satisfaction of a condition precedent and breach of Appellant’s right to fair hearing. (Grounds 2, 3, 4, 5 & 8).
3. Considering the terse contents of the charge filed before the lower court and the scant documents attached as proof of evidence, whether the jurisdiction of the lower court was properly activated to entertain a criminal trial. (Grounds 6, 7 & 12).
4. Whether the prosecutorial powers of the Attorney-General of a State are unqualified and not limited by Section 211(3) of the 1999 Constitution of the Federal Republic of Nigeria, 1999 (as amended) and which said Constitutional provisions are superior to any other law, such that any law which is inconsistent with the said Constitutional provisions is void to the extent of its inconsistency. (Grounds 9 & 11)
5. Whether the lower court was right to approve of the use before it of material evidence which are subject of restraining orders of courts of coordinate jurisdiction. (Grounds 10).

This appeal shall be determined on the said issues as formulated by the Appellant. (Issues two and five will be taken together.)

Issue One

Issue one challenges the competence of “the people of Lagos State” which the learned silk opines is not a juristic personality and therefore not a proper party before the court.

The learned senior Counsel to the Appellant submits that Section 6 of the 1999 Constitution of the Federal Republic of Nigeria, 1999 (as amended) (here after refers simply as the Constitution) provides for the judicial powers exercisable by Nigerian courts. That the clear and unambiguous provision is to the effect that the jurisdiction of Nigerian courts is only in respect of determination of dispute between verifiable, tangible and identifiable persons (natural and artificial) qua parties before the court, that can enjoy civil right and/or be liable to obligation as envisaged by Section 36 of the Constitution Senior Counsel places reliance on the cases of Administrator/Executors of the Estate of General Sani Abacha v. Samuel David Eke Spiff & Ors (2009) All FWLR (Pt. 467) 1 @ 30, Calabar Central Co-operative Society v. Ekpo (2008) 2 SCNJ 307 @ 328.

The learned Silk submits that when interpreting a statute the court would avoid an interpretation that will lead to absurdity (See Global Excellence Com. Ltd & Ors. v. Donald Duke (2007) 16 NWLR (Pt. 1059) 22). Questions if “the people of Lagos” can be a party, government or authority contemplated as a litigant in court by Section 6(6)(b) of the Constitution which the learned Silk says is mandatory requiring no interpretation but application; that the court cannot act in vain by adjudicating over parties against whom judgment cannot be enforced. See (Adegun v. Fashogbon (2008) 17 NWLR (Pt. 1115) 149).

Submits that the charges before the lower court is improperly constituted, leaving the court without jurisdiction and that the issue of jurisdiction can be raised at any time even on appeal and urges this court to so hold. (Refers Bronik Motors v. Wema Bank (1983) 6 SC 158-138).

Submits that Section 253 of the Administration of Criminal Justice Law of Lagos State, 2007 (here after refers simply as ACJL) which mandates the prosecution to be initiated in the name of “The People of Lagos State” is inconsistent with the provision of Section 6(6)(b) of the Constitution. That on the authority of Section 1(3) of the Constitution, Section 253 ACJL is void to the extent of its inconsistency with Section 6(6)(b) of the Constitution.