Onwuka Vs The State (1970) LLJR-SC

Onwuka Vs The State-1970

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COKER, JSC. 

The appellant was tried and convicted by Adefarasin, J. at the Lagos Assizes and sentenced to a total term of seven years IHL. The information on which he was charged contains two counts as follows:- “Statement of Offence: 1st Count Fraudulent false accounting, contrary to section 438 (b) of the Criminal Code.

Particular of Offence Samuel Chike Onwuka (M) between January 1965 and February 1967 at Lagos, in the Lagos Judicial Division, being a clerk employed by Sterling Drugs International, Lagos with intent to defraud made false entries in a book of accounts belonging to your employer to wit: the wages book purporting to show that between the said dates the total wages paid to the company employees was £24,021-6s-8d (twenty-four thousand and twenty- one pounds, six shillings and eight pence) whereas in truth and in fact it was £19,852-16s-8d (nineteen thousand, eight hundred and fifty-two pounds, sixteen shillings and eight pence). Statement of Offence: 2nd Count Stealing, contrary to section 390 (6) of the Criminal Code.  Particulars of Offence Samuel Chike Onwuka between January 1965 and February 1967 at Lagos, in the Lagos Judicial Division, being a clerk in the Sterling Drugs International, Lagos stole the sum of £4,169-10s (four thousand, one hundred and sixty nine pounds and ten shillings) property of your employer the said Sterling Drugs International, Lagos.” Manifestly, the offences of which he was charged are stated to have been committed “between January 1965 and February 1967 at Lagos”. Seven witnesses testified for the prosecution and the appellant himself gave evidence before the learned trial judge. Counsel for the appellant as well as counsel for the prosecution also addressed the court and it is pertinent to state that at no stage of the proceedings in the High Court, including the delivery of judgment, was the question of lack of competence by the Director of Public Prosecutions of Lagos State to file the Information adumbrated. The appellant has now appealed to this Court and the constitutional ground of appeal argued on his behalf is- “(1) The trial and conviction of the appellant was illegal and ought to be quashed because the offences alleged in the information being offences against Federal Legislation (before it took effect as part of the laws of Lagos State) it was not competent for the Director of Public Prosecutions of Lagos State to file the Information .”

The ground of appeal challenges the competence of the Director of Public Prosecutions of the Lagos State to file the Information on which the appellant was tried and convicted. Learned counsel for the appellant has submitted to us that the offences for which the appellant was tried were offences against Federal legislation stated to have been committed during a period when Lagos State had not been created and the Criminal Code had not taken effect as a State legislation. Learned counsel for the appellant referred to section 104 of the Nigerian Constitution and to sections which are in pari materia with it in the Regional Constitutions and submitted that while the Federal Attorney-General (or the Federal Director of Public Prosecutions by virtue of section 104(3) is competent to institute such prosecution in respect of offences created under any Act of Parliament or decree or any law falling within section 104(8) (b), a State Attorney-General (or a State DPP. as the case may be) can only institute criminal proceedings in respect of offences under the State law. In support of this contention counsel for the appellant referred us to the definition of “Law” in section 18(1) of the Interpretation Act, 1964.

That section provides as follows:- “Laws” means any law enacted or having effect as if enacted by the legislature of a Region and includes any instrument having the force of law which is made under a Law.” For his part the learned counsel for the Director of Public Prosecutions, Lagos State, submitted that he was competent to file the present Information and institute criminal proceedings against the present appellant as he did by virtue of powers conferred on him by the provisions of section 8 of the Lagos State (Interim Provisions) Decree, 1968, (No. 13 of 1968). The relevant provisions of section 8 are as follows:- “(1) There shall be a Director of Public Prosecutions for Lagos State, whose office shall be an office in the public service of Lagos State and, without prejudice to the provisions of this Decree relating to the Public Service Commission of the state, an office in the Ministry of Justice of that state.

(2) Subject to the provisions of any enactment conferring extended powers as to prosecutions on the Attorney-General of Lagos State (Or in the event of his absence, inability for any reason to act, or non-appointment, the Legal Secretary thereof) shall have power in any case in which he considers it desirable so to do- (a) to institute and undertake criminal proceedings against any person before any court of law in the state in respect of any offence created by or under any law; (b) to take over and continue any such criminal proceedings that have been instituted by any other person or authority; and (c) to discontinue at any stage before judgment is delivered in any such criminal proceedings instituted or undertaken by himself or any other person or authority.

(3) The powers of the Attorney-General of Lagos State or that of the Legal Secretary thereof, as the case may be, under subsection (2) of this section may be exercised by him in person and through the Director of Public Prosecutions of the state acting under and in accordance with the general or specific instructions of the Attorney-General or of the Legal Secretary, as the case may be, and through the officers of the Ministry of Justice of that state, acting under and in accordance with such Instruction.

The learned Principal State Counsel further submitted that on the plain meaning of section 8(2) (a) the Director of Public Prosecutions was competent to institute criminal proceedings in respect of any offence created by or under “any law” in force in Lagos. There can be no doubt that the issue of competence to file an Information and institute criminal proceedings is fundamental and when such competence is not established this Court will hold that the trial is a nullity. See Q v. Owoh [1962] 1 All NLR. 659. There is no argument that the Criminal Code under which the appellant was charged is a law in force in Lagos State. Section 8(1) of the Lagos State (Interim Provisions) Decree, 1968 creates the office of the Director of Public Prosecutions for the State.

Section 8(2) invests the Attorney-General of the State in the circumstances described in that subsection with powers, inter alia, to institute and undertake criminal proceedings and section 8(3) names the Director of Public Prosecutions of the State as one of the functionaries through whom the Attorney-General of the State may exercise the powers contained in section 8(2). Subsections (2) and (3) of section 8 refer as well to the legal Secretary of the State but in view of the fact that that official is referred to in this action as a substitute for the Attorney-General it is not necessary to refer to him specifically in this judgment.

Learned counsel for the appellant has referred us to a number of sections in the Nigerian Constitution dealing with the exercise of the prerogative of mercy (i.e. section 101), prosecutions for offences under “federal” enactments (i.e. section 104 (8) and the like and has suggested likely repercussions that might result If the Attorney-General of Lagos State or the Director of Public Prosecutions of the State were allowed unfettered competence in the institution of criminal proceedings in respect of “any law” when in respect of those proceedings other acts such as the exercise of the prerogative of mercy would occur.

In particular learned counsel for the appellant has submitted that as at the date of the present information- (i) by virtue of section 104 of the Federal Constitution (1963) only the Attorney-General of the Federation by himself or acting through the Director of Public Prosecutions of the Federation had the necessary competence to file an information and institute criminal proceedings in respect of any offence under any Act of Parliament, decree or other legislation taking effect as federal legislation; (ii) the Attorney-General of Lagos State (by himself or acting through the Director of Public Prosecution of the State) is only competent to file an information and institute criminal  proceedings in respect of any offence under a State law or any legislation which has effect as a State law; and (iii) in the absence of any special statutory provision neither the Attorney-General of Lagos State or the Director of Public Prosecutions of the State has the necessary competence to file an information and institute criminal proceedings in respect of any offence committed against the Criminal Code at a time when that Code was in force in Lagos as an Act of Parliament or Federal Law.

On the date of the information in this case, i.e. the 20th May, 1969, the Criminal Code was in force in Lagos as a State law and indeed has been so since the creation of Lagos State (see sections 1 (5) and 7(3) of the States (Creation and Transitional Provisions) Decree, 1967 (No. 14 of 1967). Before then however, the Criminal Code was in Lagos in force as a “federal” legislation. We point out that by virtue of section

Other Citation: (1970) LCN/1806(SC)