The State V. Cornelius Obasi & Ors. (1998)
LawGlobal-Hub Lead Judgment Report
AKPABIO, J.C.A.
This was an appeal against a ruling of Chukwuma Eneh. J., of the then High Court of Enugu State (but now Ebonyi State) holden at Abakaliki in charge No. AB/5c/92 delivered on 30/3/95, wherein he held that the information as originally laid before him was invalid and incompetent as there was no incumbent Attorney-General in Enugu State as at the time the information was originally laid. He therefore struck out the case before him, but ordered the accused persons to be “remanded in prison custody for the D.P.P’s necessary action in the light of this ruling as they are not entitled to be discharged.”
In the original information, the three respondents were charged with murder contrary to section 274(1) Cap. 36 Laws of Anambra State of Nigeria, 1986, as applicable to Enugu State. Each of the accused pleaded “not guilty” and the trial started with the prosecution calling eight witnesses. At the end of the case for prosecution, the learned defence counsel, Mr. Umoke, made a “no case” submission. However, towards the end of his submission, Mr. Umoke tagged to it an objection on the competence of the information. He submitted that as at the time the information was filed on 5/2/92 there was no Attorney-General in Enugu State. He urged the court to take judicial notice of the fact that from 1/2/92 to 18/2/92 there were no civil commission in Enugu State. He referred to a Gazette notification No. 7 of 9/4/92, which showed that the then Attorney-General for Enugu State was appointed on 18/2/92. He then argued that under the 1979 Constitution of the Federation it was the Attorney-General that was empowered to institute and undertake criminal proceedings. According to him these powers were personal to the Attorney-General, and it was he alone that could delegate the powers. He then urged the court to strike out this information and discharge the accused persons.
Realizing the importance of the objection which he called a constitutional matter, the learned trial Judge adjourned the matter and ordered either the Hon. Attorney-General of the State or the D.P.P to come and reply to the objection. The D.P.P., (Mr. Akubuilo) duly appeared on 7/2/95 and replied to the constitutional issue and contended that information filed was competent even though it was filed when there was no Attorney-General in the State. At the end of the arguments, the learned trial Judge came-out with a 19-paged reserved ruling in which he held that an information filed when there was no State’s Attorney-General in office was incompetent and invalid. The case for the prosecution already concluded was a nullity. He therefore struck out the whole case, but curiously did not discharge the accuseds, but ordered them to be remanded in prison custody.
The learned D.P.P. of the State being aggrieved by the above ruling has now appealed to this court on one ground from which the following one issue for determination has been formulated.
“Whether the information preferred and filed in the High Court by a Deputy Director of Public Prosecutions under the department of the Attorney-General when there was no incumbent Attorney-General for Enugu State is invalid and unconstitutional”.
For the accused persons who will hereinafter be referred to as the “respondents” a brief of argument was also filed in which one issue for determination was formulated in almost identical terms as follows:-
“Whether the trial Judge was right in upholding the objection of the counsel for the accused persons that an information filed by the Deputy Director of Public Prosecution when there is no incumbent Attorney-General for the State is incompetent and invalid.”
– Since the two formulations are basically the same, there is in essence only one issue for determination before the court, I shall therefore proceed to resolve this appeal in accordance with the issue formulated by the appellant, namely:-
“Whether the information preferred and filed in the High Court by a Deputy Director of Public Prosecution under the Department of the Attorney-General when there was no incumbent Attorney-General for Enugu State is invalid and unconstitutional.”
Arguing this issue in his brief the learned Assistant Chief Legal Officer (Mr. L.O. Okereke) who prepared the appellant’s brief reproduced the provisions of section 191(1) (a), (b) and (c) as wel1 as section 191(2) of the 1979 Constitution of the Federal Republic of Nigeria, which empowered the Attorney-General of the State to initiate and undertake criminal proceedings in the courts as follows:-
“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 House of Assembly;
(b) to 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.
(2) The powers conferred upon the Attorney-General under subsection (1) of this section may be exercised by him in person or through officers of his department.”
It was then submitted that by the clear and unambiguous provisions of section 191(2) of the 1979 Constitution the Attorney-General of a State was empowered to exercise his powers personally or delegate them to law officers under his department. The cases of
- Ibrahim v. The Slate (1986) 1 NWLR (Pt.18) 650
- Attorney-General of Kaduna State v. Hassan (1985) 2 NWLR (Pt.8) 483 and
- Adamu Jatau v. The State (1966) 1 All NLR. 264
were cited in elucidation. It was also pointed out that other laws such as the Civil Service (Re-organisation) Decree No. 43 of 1988 otherwise known as the Civil Service (Re-organisation) Act, Cap. 55 Laws of the Federation, 1990, s.11(3) and (5) also gave powers to Directors-General to deputize for Ministers whenever they were away from office.
The court was therefore urged to allow this appeal, quash the order of the trial court, and order the trial court to complete the trial of the respondents.
In reply to the above, Me. Nduka Umoke, the learned counsel for the respondents conceded that s. 191(2) of the 1979 Constitution gave the Attorney-General power to delegate his powers under s. 191(1) to other officers of his department, but argued further that in order for such a delegation to be possible, there has to be in existence an incumbent Attorney-General, otherwise there could be no “implied delegation” of powers. The case of Attorney-General of Kaduna State v. Hassan (1985) 2 NWLR (Pt.8) 483 was cited in support. He quoted inter alia the dictum of Oputa J.S.C. at P. 521 as follows:’97
“The question of delegation will arise only where there is someone constitutionally competent to make the delegation.”
He therefore submitted that the learned trial Judge was right in holding that the information was invalid and incompetent, and urged the court to dismiss this appeal.
I have carefully considered all the arguments canvassed above by learned counsel on both sides, and find it undisputed that under s.191(2) of the 1979 Constitution of the Federal Republic of Nigeria-
“The powers conferred upon the Attorney-General under subsection (1) of this section may be exercised by him in person or through officers of his department.”
That being the case, I think it was a non-issue whether there was somebody in the office of Attorney-General to do the delegation or not. If the legislature had intended the Attorney-General to do everything himself, as the respondent tended to argue, there would have been no need creating a Ministry of Justice, with a whole lot of officials starling from a Solicitor-General, a Director of Public Prosecutions and many others to assist the Attorney-General. The important thing to note in this case is that the post of an Attorney-General is a Constitutional post created not just by statute but by the Constitution – our Suprema Lex. It was therefore an irrelevant consideration, whether there was an incumbent in office or not.
I have also read afresh the case of Attorney-General of Kaduna State v. Hassan (1985) 2 NWLR (Pt.8) 483, which was heavily relied upon by the respondent, and find that the facts of that case were radically different from those of the instant case. They cannot be said to have been on all fours. In the Hassan case, one Abdul Rashidi Umaru was killed in an outbreak of communal violence. As a result, certain villagers were arrested and charged to court with the culpable homicide of the said Abdul Rashidi Umaru. After the villagers were arraigned before Aroyewun, J. in the Kaduna State High Court, the learned Solicitor-General of Kaduna State, purporting to act under s. 191(2)(c)(sic) should it not be s.191(1)(c) of the 1979 Constitution of Nigeria and s.130(1) of the Criminal Procedure Code entered a “nolle prosequi” in respect of the charges. At the time the nolle prosequi was entered, there was no Attorney-General for Kaduna State, and there was no delegation of the powers of the Attorney-General to the Solicitor-General. Therefore Aroyewun J., struck out the charges and discharged the accused persons. On that being done, the father of the deceased (the respondent) instituted a civil action before Chibue J, questioning inter alia the competence of the Solicitor-General to enter a “nolle prosequi”, Chibue held that the entry of the nolle prosequi by the Solicitor-General was unconstitutional and void. On appeal to the Court of Appeal, the said appeal was dismissed by a majority of three to two. On further appeal to the Supreme Court, the appeal was unanimously dismissed.
Be it noted that nobody complained about the charges having been filed when there was no Attorney’97General in office. Only the filing of the “nolle prosequi” was complained about. In effect therefore one may say that the case of Hassan is authority only for the proposition that Solicitor-General has no power to discontinue criminal proceedings on behalf of the State and not that a Director of Public Prosecution or his Deputy cannot institute Criminal Proceedings on behalf of the State.
In view of the foregoing, it is my respectful view that the learned trial Judge was in error when he struck out the information as incompetent and invalid.
Before concluding, I feel obliged to mention a point of law about the correct procedure for challenging the validly of an information, which though not raised by either party in their briefs, I consider to be sufficiently important to be raised by this court suo motu in the interest of future generations of lawyers in the country, and that is that where an accused person perceives that an indictment or information is incurably defective, he should properly file a motion to have the information quashed before plea is taken. It was therefore wrong for the learned counsel for respondents to wait for the plea of the respondents in the instant case to be taken, and for case of the prosecution to be commenced and concluded before raising his objection against the competence of the information in the course of making his “no case” submission orally, and not even by motion. The objection was not properly made, and so should have been ignored or refused by the learned trial Judge. (See the cases of Okoli v. State (1992) 6 NWLR (Pt.247) 381, and Ikomi v. State (1986) 3 NWLR (Pt.28) 340). See also s.167 of the Criminal Procedure Act (Cap 80) Laws of the Federation. 1990 on the proper time for raising objection against a defective charge.
In view of the foregoing, this appeal succeeds and is hereby allowed. The order of the learned trial Judge striking out the entire case on grounds of incompetence of the information is hereby set aside. In its place the case is ordered to be re-listed and the trial continued from where it stopped by the same trial Judge, but if for any reason the Hon. Justice Chukwuma-Eneh before whom the case was heard is no longer available the trial should then be started de-novo before another Judge of Ebonyi State High Court.
Other Citations: (1998)LCN/0408(CA)
