FAWEHINMI V. AKILU & ANQR.
| Pages | 1265-1326 |
FAWEHINMI V. AKILU & ANOR.
1265
FAWEHINMI V. AKILU & ANOR.
5
CHIEF GANI FAWEHINMI
APPELLANT
V
10
1. COL. HALILU AKILU
2. LT. COL A.K. TOGUN
RESPONDENT
IN RE: ODUNEYE, D.P.P.
SUIT NO. SC 43/1987
SUPREME COURT OF NIGERIA
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BELLO,
C.J.N.
OBASEKI,
J.S.C.
ESO,
J.S.C.
NNAMANI,
J.S.C.
UWAIS,
J.S.C.
20
WALT,
J.S.C.
CRAIG,
J.S.C.
18th December, 1987
Administrative Law - Mandamus - Application for leave to apply.
Constitutional Law - Locus Standi, S.6(6)(b) 1979 Constitution - Right of private
person to apply for mandamus for purposes of Criminal Prosecution - Right
of Attorney-General in criminal prosecution - Sections 160 and 191, 1979
Constitution.
Criminal Law and Procedure - Criminal prosecution - Right of private persons
- Sections 342, 340 and 341, Criminal Procedure Law, Cap. 32, Laws of
Lagos State.
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ISSUES:
1.
Whether an expression by a law officer that he is unable to come to a decision
to prosecute is tantamount to a refusal to prosecute.
2.
What is the object of s.342(a) of the Criminal Procedure Law, Cap.32, Laws of
Lagos State?
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3. Whether a private person is obligated by virtue of ss. 126 - 130 of the Criminal
Procedure Law to ensure the prosecution of Criminals.
4.
Whether the right of a private person to prosecute a felon is diminished where
the offence is one of murder.
5.
Whether an Attorney-General once he has endorsed a certificate of
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disinclination to prosecute is precluded from exercising his powers under s.
191 of the 1979 Constitution.
6.
Whether the
locus stand!
of a private prosecutor is affected by the inability of
a D.P.P. to take a decision as to whether or not to prosecute.
7.
Whether the question of justiciability affects that of
locus stand!.
50
8. Whether the powers of arrest and prosecution conferred by the Criminal Code
and Criminal Procedure Law on "any person", give
locus stand!
to any person
to prosecute an offender.
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30
1266
NIGERIAN SUPREME COURT CASES
[1987] 2 N.S.C.C.
9.
Whether a Law Officer having declined to prosecute at public instance is under
a 'duty to endorse a certificate of disinclination when required by a private
person to do so.
10.
When may a court refuse to make an order of
mandamus.
FACTS
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The Appellant as applicant in the Lagos High Court sought leave to apply for
an order of
mandamus
to issue to compel the Director of Public Prosecutions,
Lagos State, to endorse a certificate of disinclination to prosecute on an informa-
tion which the appellant had submitted to him. It was in respect of the murder of
one Dele Giwa who was killed by means of a Letter Bomb on the 19th day of Oc-
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tober, 1986. The appellant, as friend and Legal representative of the deceased
had, after a private investigation into the circumstances of the deceased's death,
drawn up an information, together with proofs of evidence and submitted same to
the respondent for the purposes of criminal prosecution of the persons therein
named: Col. Halilu Akilu, Lt. Col. A.L. Togun, or failing to endorse thereat a cer-
15
tificate of disinclination to prosecute under s. 342 of the Criminal Procedure Law,
Cap. 32, Laws of Lagos State.
The respondent, being of the opinion that the proofs of evidence as submitted,
did not make out a
prima facie
case for the prosecution for murder, of the per-
sons named communicated orally to the appellant his inability to come to a deci-
20
sion to prosecute. Thereupon the applicant brought an
ex-parte
motion for leave
to apply for an order of
mandamus.
The trial court ruled against the prayer and
held that the proofs of evidence did not disclose a
prima facie
case and that the
failure to come to a decision to prosecute of the respondent, could not amount to
refusal to prosecute at the instance of the public. The appellant appealed to the
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Court of Appeal which held
inter alia,
that the appellant had no
locus standi
to bring
the action under s.6(6)(b) of the 1979 Constitution and on the authorities of
Ade-
sanya v. President
(1985) 2 N.C.L.R. 338 and other cases of that line. The appel-
lant appealed further to the Supreme Court.
HELD:
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1.
That where a Law Officer expresses that he is unable to come to a decision to
prosecute, it cannot be interpreted to mean that he has come to a decision to
prosecute. It is more consonant with reason to hold that at that point in time, he
has declined to prosecute. The reason for taking such a stand is not relevant
at this stage and need not be inquired into for the purpose of the application
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for leave. What is relevant is the failure or refusal (1) to take a decision to
prosecute or not and (2) to endorse an information that he declines to prosecute
at Public Instance.
2.
That the object of s.342(a) of the Criminal Procedure Law is to prevent double
prosecution one by the Law Officer and the other by the private person. Both
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the Law Officer and the private prosecutor will need to obtain the consent of
the judge to file information where the accused has not been committed for trial
after a preliminary investigation. The Law and the Constitution have not imposed
on or transferred to the Law Officers the function of the judge in this regared.
3.
That the provisions of ss.126-130 of the Criminal Code, Laws of Lagos State
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Cap. 31 leave no one in doubt as to the obligations on every person in Lagos
State to see that any Criminal or offender is brought to justice and that no one
helps him to escape justice. So also are the provisions of ss.12, 59, 77 and
81 of the Criminal Procedure Law, Cap. 32, Laws of Lagos State. Criminal Law
is not like the Law of Procedure meant for Lawyers only but is addressed to all
50
classes of society, as rules that they are bound to obey on pain of punishment.
The Law therefore imposes a duty on all persons not only to deprive criminals
of all hiding places but to ensure that they are arrested, prosecuted and brought
to justice.
FAWEHINMI V. AKILU & ANOR.
1267
4.
That the Criminal Code does not by its provisions confine complaint in respect
of the offence of murder to a particular person or class of persons. Any person
who has sufficient information in his possession to establish the crime and
identify the accused person is entitled to lay the charge. In the instant appeal,
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the appellant is eminently qualified under the Law.
5.
That the powers exercisable by the Attorney-General pursuant to section 191(b)
and (c) are unfettered. They are not fettered by any action he may have taken
under s. 343 of the Criminal Procedure Law to endorse on the information
presented to him by the private person with a certificate that he has seen the
10
information and declines to prosecute the offence set forth therein at public
instance. That certificate will not bar him from discontinuing any such
proceedings which have been instituted.
6.
That it is idle for the respondent, to found the reasons for not making up his
mind not to prosecute the offences stated on the information delivered by the
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appellant at public instance, on the paucity of investigatory materials supplied
and his desire to augment it by materials to be secured by him. The constitution
has given him latitude to conduct his own independent investigation and act on
independent materials obtained as a result of such investigation. The
non-availability of such material and the inability of the D.P.P. to take a decision
20
to prosecute will not and cannot affect the
locus standi
of the appellant to initiate
these proceedings nor do they weaken the strength of his case for leave to
apply for an order of
mandamus.
7.
That when a party's standing to sue
(i.e locus standi)
is in issue, the question
is whether the person whose standing is in issue is the proper person to request
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an adjudication of a particular issue and not whether the issue itself is justiciable.
Thus one has to look at the cause of action and the facts of the case to ascertain
whether there is disclosed a
locus standi
to sue.
8.
That the narrow confines to which section 6(6)(b) of the constitution, 1979,
restricts the class of persons entitled to
locus stand!
in civil matters, have been
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broadened by the Criminal Code, the Criminal Procedure Law and the
constitution itself. The powers of arrest and prosecution conferred by the
various sections of the Criminal Procedure Law and Criminal Code on "any
person" has the magic effect of giving
locus standi
to any person who cares to
prosecute an offender if and only if, he saw him committing the offence or
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reasonably suspects him of having committed the offence.
9.
That the respondent as a Law Officer who has seen the information drawn up
by the appellant and has declined to prosecute the offence therein stated at
public instance is under a clear duty to endorse a certificate to that effect on
the information and having failed to do so the appellant is justified in bringing
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the application for the order of
mandamus
by a two stage procedure.
10.The court may refuse to make an order of
mandamus
unless (1) it has been
shown that a distinct demand for performance of the duty has been made and
that the demand has deliberately not been complied with, (2) there is undue
delay and (3) where the applicant's motives are unreasonable.
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Per
CRAIG, J.S.C.
(Dissentiente):
11. That if a private prosecutor has a statutory right to initiate criminal proceedings
in court, it becomes part of his civil rights and obligations under section 6,
sub-section (6)(b) of the Constitution of the Federal Republic of Nigeria, 1979,
50
and he has the right to protect and enforce such civil rights by any legal process
which he thinks appropriate. Indeed if such prosecutor thinks that another
person (in this case, the D.P.P.) is trying to prevent him from exercising his
statutory right to prosecute, he may bring appropriate proceedings to remove
the impediment.
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