Attorney General of Lagos State v Hassan (CA/L/745/2013) [2016] NGCA 84 (23 March 2016)


In the Court of Appeal
Holden at Lagos










JOSEPH SHAGBAOR IKYEGH, (JCA) (Delivering the Leading Judgment): The respondent worked as a security guard at Barbington Street, Iyana-Itire, Lagos.  A robbery and murder incident occurred near the respondent’s place of work.  This led to the arrest of the respondent by the police as one of the suspects.  The respondent was taken to the Magistrate Court Ebute Metta where he was remanded in prison custody.  He stayed in prison custody for eleven years before an application for the enforcement of his fundamental rights was filed at the High Court of Justice of Lagos State (the court below).  The application was granted.  The respondent was granted his personal liberty with monetary compensation of N700,000.00 ordered against the appellant which occasioned the present appeal.
The lone issue for determination from the two grounds of appeal contained in the notice of appeal is stated in the appellant’s brief of argument filed on 06-02-15, but deemed properly filed on 11-03-15, as follows-
“Whether the Appellant is liable for the detention of the Respondent who was arrested and detained by the Nigerian Police without proper arraignment.”

The appellant referred to sections 2 (2), 4, 5, 211, 215 of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) and item 45 of the Exclusive Legislative List thereof and sections 4 and 23 of the Police Act, CAP P19 to contend that construed literally as should be the case vide Global  Excellence  Communications  Ltd.  v.  Duke (2007) 7 S.C (pt. 11)  162,  Ojokolobo  v.  Alamu  (1987)  3 NWLR (pt. 61) 377 and N.E.W. Ltd v. Denap Ltd. and Anor. (1997) 10 NWLR (pt. 526) 481 at 532, there is clear demarcation between the statutory powers of the police to detect and investigate crimes as well as to arrest and detain accused persons and the constitutional powers of the Attorney General to initiate, take over and even discontinue criminal prosecution; that in the performance of the statutory powers that Nigeria Police are not answerable to the Attorney-General; consequently, notwithstanding the importance of the office of Attorney-General in the administration of criminal justice, it does not necessarily follow that police investigation of a case must lead to the prosecution of the case as to bring in the role of the Attorney-General in whose name the prosecution is to be undertaken; that it is necessary for both the police and the office of the Attorney-General to cooperate in such matters as the latter cannot encroach on the statutory powers of the former vide Attorney-General of the Federation v. Ajayi (1996) 5 NWLR (pt. 448) 283 at 290, Sanusi v. Ayoola (1992) 23 NSCC (pt. 111) 420 at 430, Onyekwere v. State (1993) 8 NSCC 250 at 255, Umoera v. C.O.P. (1977) 7 S.C. 13, Nwankwo v. Queen (1959) 4 F.S.C. 274.
It was also submitted that it is in order to bridge the gap between the police and the Attorney-General that section 74 of the Administration of Criminal Justice Law 2011 (ACJL) provides for the forwarding of the case diary or files by the police to the office of the Attorney-General for legal advice to trigger the prosecutorial powers of the Attorney-General under section 211 of the 1999 Constitution; that without seeing the case file or diary the Attorney-General cannot proceed to render any prosecutorial service therefore the court below expected the impossible from the office of the Attorney-General when it held that the appellant as the Attorney-General was imputed with constructive knowledge of every remand proceedings in Lagos State which is a practical and administrative impossibility and contrary to the fundamental principle of statutory interpretation that the law does not command the impossible (lex non cogit ad impossibilia) vide the case of Lasun v. Awoyemi (2009) 16 NWLR (pt. 1168) 548.

It was finally contended that having held that the police refused to forward the case file of the matter to the office of the DPP under the Attorney-General’s office for legal advice, the court below was wrong to hold in its judgment that the appellant was also responsible for the eleven (11) years spent by the respondent on remand in prison custody;  and that the appellant was therefore liable for the infraction of the respondent’s fundamental right to personal liberty; upon which the appellant urged for the appeal to be allowed and that part of the decision of the court below affecting the appellant be set aside.
In a brief of argument filed on 24-03-15, the respondent identified the following issue for determination in the appeal –
“Whether the Appellant is liable for the continued remand of the Respondent in prison for over ten years without trial”.

The respondent cited sections 4, 24 and 27 of the Police Act on the powers and duty of the police to investigate crimes reported to the police to contend that in the present case the police had discharged their statutory obligation before taking the respondent to the Magistrate Court, therefore the issue for determination framed by the appellant is inappropriate not having arisen from the decision of the court below, nor based on the two grounds of appeal in the notice of appeal in pages 86 - 88 of the record of appeal (the record); consequently it was urged that the issue for determination submitted by the respondent should be adopted as it is in tandem with the grounds of appeal and the pith of the decision of the court below.

The respondent relied on section 35(1)(c)(4), 211 of the 1999 Constitution and sections 71, 72, 74(3) and (7), 264 of ACJL 2011 (s.268 of ACJL 2007) read with the cases of Adedayo v. PDP (2013) 17 NWLR (pt.1382) 1 at 55, Anaekwe v. COP (1996) 3 NWLR (pt.436) 320, Onagoruwa v. State (1993) 7 NWLR (pt.303) 49, Ugwu v. Ararame (2007) 12 NWLR (pt.1048) 367 at 439 to submit that the mischief rule of interpretation of statutes should be adopted in construing the provisions of the ACJL (supra) which are aimed at preventing unlawful incarceration of accused person under the guise of remand proceedings and are, also, intended to complement the constitutional safeguard of personal liberty of an accused person enshrined in section 35(4) of the 1999 Constitution.
Consequently, it was urged by the respondent that having regard to the use of the phrase ‘notwithstanding’ in section 74(3) of ACJL 2011, the appellant is bound to request for the duplicate case file relating to any offence for the purpose of issuance of legal advice even if the police neglect to forward the same to the appellant, therefore the court below was right in holding that under the principle of strict liability, the appellant had the responsibility of taking steps to be abreast of and/or to monitor criminal prosecutions commenced by way of remand proceedings, whether they were commenced by his office or by any other person or authority authorised by law to file criminal cases.

The respondent concluded by requesting for the appeal to be dismissed and the decision of the court below affirmed.
The grounds of appeal in pages 86-88 of the record from which the sole issue for determination (supra) was refined by the appellant relate to the said sole issue which I hereby adopt for the discussion.
    The court below held in part of its judgment in page 49 of the record that-
“The option that a Court will adopt must depend on the facts of each case.  In the instant case, it is obvious that the 1st Respondent has no desire in ensuring the prosecution of the Applicant for the alleged offences and only wants the Appellant kept in prison unjustly.  This is evident from its refusal to forward the case file of the matter to the office of the Director of Public Prosecution for appropriate legal advice as the Police is yet to forward the case file to the Director of Public Prosecutions office.”
                (My emphasis).

Having so held the court below none-the-less held further that the appellant who was the 2nd respondent at the court below was liable for the infraction of the respondent’s right to personal liberty.  It is accordingly necessary to ascertain whether the court below was right in holding the appellant liable for the wrongful detention of the respondent for eleven (11) years in prison custody.
Section 72(1) of ACJL 2011 (which is the same as section 72 of ACJL 2007) provides -
“(1)    In any remand proceedings with respect to any indictable offence against a law before a Magistrate, the Attorney-General of the  State may indicate to the court either personally by himself, or through any of the officers in his chambers in writing, informing the Magistrate by way of legal advice through the prosecuting Police Officer or a Law Officer that the state intends that the proceedings shall be discontinued and thereupon the suspect shall immediately be discharged in respect of the offence.”

While section 74 (1), (2) and (3) thereof states -
“(1)    The Commissioner of Police shall forward all duplicate case files with respect to indictable offences to the office of the Attorney-General for the purpose of issuance of legal advice.
(2)    The legal advice issued by the office of the Attorney-General with respect to such indictable offences or any person shall be conclusive.
(3)    Notwithstanding the provisions of subsections (1) and (2) of this section, the Attorney-General may request for duplicate files relating to any offence for the purpose of issuance of legal advice.”    

There is also section 264(1), (6) and (7) of ACJL 2011 (formerly section 268(1) and (7) of ACJL 2007) which provides –
“(1)    Any person arrested for any offence triable on Information shall within a reasonable time of arrest be brought before a Magistrate for remand and the Magistrate shall have powers to remand such a person after examining the reasons for the arrests exhibited in the request form filed by the Police, and if satisfied that there is probable cause to remand such person pending legal advice of the Director of Public Prosecution or the arraignment of such person before the appropriate Court or Tribunal.
(6)    At the expiration of the further order made pursuant to subsection (5) above, the Magistrate shall issue a hearing notice to the Commissioner of Police and/or Director of Public Prosecutions and adjourn the matter in order to inquire as to the position of the case and for the Commissioner of Police and for Director of Public Prosecution to show cause why the person remanded should not be released.
(7)    The Magistrate shall extend the order to remand only if satisfied that there is a good cause and that necessary steps have been taken to arraign the person before an appropriate Court or Tribunal..”

I agree with both learned counsel that the constitutional and statutory provisions under discussion in the appeal have to be given their literal, plain and ordinary construction or meaning without resorting to external or internal aid.  Because it is the duty of the court to interpret the plain words of the law maker as used vide A.-G., Federation v. A.-G., Lagos State (2013) 16 NWLR (pt.1380) 249.
Further, I subscribe to the mischief rule of interpretation of enactments which enjoins the court to trace the history of the mischief or defect which the old law did not meet and the remedy the enactment is intended to cure and agree with the respondent that the mischief the ACJL 2011 is out to remedy is the unlawful and unconstitutional incarceration of accused persons in the remand proceedings under the close watch and scrutiny of the appellant as the Chief Law Officer of Lagos State.  See Fidelity Bank Plc v. Monye and Ors. (2012) 10 NWLR (pt.1307) 1 at 31, Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296, A.-G., Bendel State v. A.-G., Federation (1982) 3 NCLR 1, Awolowo v. Shagari (1979) 6 – 9 SC 51, Adejumo v. Military Governor of Lagos State (1972) 3 SC 45 and Tukur v. Government of Gongola State (1989) 4 NWLR (pt.117) 517.
In my respectful opinion, the procedural laws (supra) under consideration in the appeal are intended to benefit a defendant vide Okegbu v. The State (1979) 12 NSCC 151 at 174 per the judgment of Idigbe J.S.C., (of blessed memory) to the effect that procedural laws are–
“… usually construed as imperative; and that is the cardinal principle of interpretation of statutes especially where procedural provisions … are inserted for the protection of accused person”.

See also the apt English case of The Secretary for Defence v. Warn (1968) 3 W.L.R. 609 at 614 per the speech of Lord Hudson cited with approval in Okegbu v. The State (supra) at 174.  
    It follows that the phrase ‘may’ in section 74(3) of ACJL 2011 means ‘shall’, ‘must’ or ‘mandatory’/’obligatory’ thus placing an imperative duty on the appellant to request for the duplicate case files relating to any offence  from the subordinate of the Commissioner of Police for legal advice by the DPP’s office under the appellant vide Edewor v. Uwegba and Ors. (1987) 1 NWLR (pt.50) 313 at 339 thus –
“Most of the cases in which the word ‘may’ has a mandatory meaning relate to cases in which they are used in penal statutes ……..”.

See also Kotoye v. C.B.N. and Ors. (1989) 1 NWLR (pt.98) 419 and Ude v. Nwara and Ors. (1993) 2 NWLR (pt.278) 638 at 661.
    Based on the peremptory content of section 74(3) of ACJL; which is made to operate notwithstanding section 74(1) and (2) thereof the former supersedes, subordinates, overrides or excludes the application of section 74(1) and (2) of ACJL (supra) vide the cases of N.N.P.C. and Anor. v. Orhiowasele and Ors. (2013) 13 NWLR (pt.1371) 211, Adedayo v. P.D.P. (supra) at 25 following Peter Obi v. INEC (2007) 11 NWLR (pt.1046) 560.
    The argument by the appellant that the police did not send the duplicate case file or diary to the office of the D.P.P for legal advice on the pending case absolved the appellant from responsibility appears enticing.  Because there is no indication in the record that the Commissioner of Police or the person(s) acting under him forwarded the duplicate case file to the appellant for legal advice.  It is also not indicated in the record that the appellant was in any way aware of the remand proceedings at the material time.  Nor did the remanding Magistrate inform the appellant through the DPP of the remand proceedings as required by section 264(6) of ACJL 2011.  Rather it is clear in the record that the police did not dispatch the duplicate case file or diary to the appellant’s subordinate for legal advice showing the appellant never knew of the remand proceedings.

    In my considered opinion strict construction of a statutory provision rejects the expansion of the law by implication and/or on equitable grounds but limits itself to the letters of the statute and within the spirit of reason, not so as to frustrate the manifest intention of the draftsman, but so as to resolve all reasonable doubts against the application of the provisions of the statute to a particular case vide Black’s Law Dictionary (Eighth Edition) page 333.

    The letters of section 74(1) of ACJL 2011 require the Commissioner of Police to send duplicate case file to the office of the DPP for legal advice in cases triable on information at the High Court.  While the letters of section 264(6) of ACJL 2011 require the remanding Magistrate to inform the Commissioner of Police and the DPP’s office under the appellant of an accused person whose remand in prison had expired for them or either of them to take appropriate action against illegal remand or detention of an accused person in prison custody.  Actual knowledge of the remand proceedings must be brought to the DPP’s office by either the subordinate of the Commissioner of Police or the remanding Magistrate or both as required by the wordings of sections 74(1) and 264(6) of ACJL.  It was not so brought to the attention of the DPP.
    The relevant provision of ACJL 2011 (supra) do not prescribe any other way of making remand proceedings known to the appellant other than those in the provisions of the enactment in question..  Constructive knowledge would imply knowledge a person using reasonable care and diligence should have of something which is attributed by law to that person.  It follows that the knowledge had of pending remand proceedings by the DPP’s office would be constructive knowledge by the appellant of the remand proceedings.  Such was not the scenario here.  The DPP’s office had no knowledge of the pending remand proceedings so it would be unfair to attribute constructive knowledge of the remand proceedings to the appellant.

    There is no room to read in the enactment what is not there.  The plain words used therein are the words effect will be given to which does not express that the appellant should act like ombudsman and/or be omniscient in combing for remand proceedings not brought to the attention of his subordinate, the DPP’s office, as to give him constructive knowledge of the remand proceedings.  So, whenever the Legislature enacts that something be done in a particular way that something cannot be done in any other way vide Buhari v. INEC and Ors. (2008) 12 SCNJ 1, Co-operative and Commerce Bank (Nigeria) v. A.-G., Anambra State and Anor. (1992) 10 SCNJ 137, Abubakar v. Nasamu (2012) 17 NWLR (pt.1330) 523.

    The appellant relied on the doctrine of impossibility of performance expressed in the Latin Maxim - lex non cogit and impossibilia.  Maxwell on The Interpretation of Statutes (Twelfth Edition) by Langan relying on the English cases of R. v. Leicestershire Justices (1850) 15 Q. B. 88, Mayer v. Harding (1867) L. R. 2 Q. B. 410, Harding v. Price (1948) 1 K. B. 695 and Nichols v. Hall (1873) L. R. and C. P. 322, illustrates the said principle of interpretation of statutes aptly in pages 326 – 327 thereof thus –

Enactments which impose duties upon conditions are, when these are not construed as conditions precedent to the exercise of a jurisdiction, subject to the maxim, lex non cogit ad impossibilla. They are understood as dispensing with the performance of what is prescribed when performance of it is impossible.
Thus, where an Act provided that an appellant should send notice to the respondent of his having entered into a recognisance, in default of which the appeal should not be allowed, it was held that the death of the respondent was not fatal to the appeal, but dispensed with the service.
In the same way, the provision of the Summary Jurisdiction Act
1857, s. 2, which made the transmission by an appellant of a case stated by the justices to the superior court named in his application within three days of receiving it a condition precedent to the hearing of the appeal, was held to be dispensed with when the court was closed during those three days, compliance being impossible.

In Harding v. Price, the trailer of a vehicle collided with and damaged a stationary car: owing to the noise made by the vehicle the driver was unaware that the accident had happened, and so he did not report it to the police as required by section 22 (2) of the Road Traffic Act 1930. He was held to be not guilty of an offence under the subsection. "If, apart from authority," said Lord Goddard C.J. (at p. 701), "one seeks to find a principle applicable to this matter it may be thus stated. If a statute contains an absolute prohibition against the doing of some act, as a general rule mens rea is not a constituent of the offence, but there is all the difference between prohibiting an act and imposing a duty to do something on the happening of a certain event. Unless a man knows that the event has happened, how can he carry out the duty imposed? If the duty be to report, he cannot report something of which he has no knowledge .... Any other view would lead to calling on a man to do the impossible."
(My emphasis).

I hold in the same vein that unless the appellant knew himself or through his subordinate that the respondent had been on remand in prison custody by order of a Magistrate when he was not supposed to be on remand at the material time, the appellant could not be expected to act on something of which he had no knowledge.

I think from the circumstances of the case where the appellant never knew of the pending remand proceedings, it was putting it too high to impute constructive knowledge on the appellant of the pending remand proceedings.  Section 74(3) of ACJL 2011 would not serve as the umbrage to impute constructive knowledge of the remand proceedings on the appellant on the premise that it is designed to empower the appellant to have access to every criminal case regardless of the nature of the offence, whether triable on information as stated in section 72(1) of ACJL 2011, or not triable by information, for the purpose of issuing legal advice.  Section 74(3) of ACJL 2011 thus confers unlimited powers on the appellant  to call for the duplicate case file for legal advice in any criminal case, which power is  expected to be exercised only in cases the appellant is aware of the remand proceedings or pendency of the criminal cases, as the case may be.

    Had the appellant been aware or cognizant of the remand proceedings without taking the necessary steps to abort it, then he would have been culpable or responsible for the wrongful detention of the respondent.  It is on the premise (supra) that I am of the modest opinion that the appellant should not have been found liable for the infringement of the respondent’s right to personal liberty in the circumstances of the case.

    In conclusion, I find merit in the appeal and hereby allow it and set aside the decision of the court below as it affects the appellant only.  Parties to bear their costs.

HON. JUSTICE UZO I. NDUKWE-ANYANWU. JCA: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Joseph Shagbaor Ikyegh, JCA
I agree with his reasoning that, the Attorney General Lagos State cannot act on information he does not have. The Attorney General cannot be held liable for not charging the Respondent when his duplicate file was not sent to his office. Finding him liable for what he does not know seem to me to be rather unfair and unjustifiable.
For this and the more robust reasoning in the lead judgment, I also will allow this appeal. I also abide by all the consequential orders contained therein and adopt them as mine.

CHINWE EUGENIA IYIZOBA JCA: I read before now the JUDGMENT just delivered by my learned brother, JOSEPH SHAGBAOR IKYEGH JCA. I agree with his Lordship's reasoning and conclusions. It is correct that the appellant not being aware of the remand proceedings should not be held responsible for the wrongful detention. However I do hope that those responsible would pay the compensation. Eleven years on remand in prison custody is unconscionable. There should be compensation for it! I abide by the consequential orders including the order as to costs.


Mrs. E. I. Alakija (DPP, Lagos State) for the Appellant (with Mr. L. A. Sanusi, A.C. Lagos State).
Mr. A. Adetola-Kazeem for the Respondent.

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