Attorney General of Lagos State v Keita (CA/L/477/2012) [2016] NGCA 85 (23 March 2016)


In the Court of Appeal
Holden at Lagos









JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is against part of the decision of the High Court of Justice of Lagos State (the Court below) awarding N7 million against the appellant and the Commissioner of Police, jointly and severally, for the infringement of the respondents fundamental right to personal liberty.

Put in a nutshell, the facts that led to the appeal emerged in this way. The respondent, a ram merchant, from Niger Republic (a Nigerian) came to Lagos to sell rams. Some Street urchins/hoodlums attacked him with broken bottles and extorted money from him. Some of them escaped. One of the attackers was however, unable to escape with the others. He drew a knife and stabbed the respondent who struggled and overpowered him and stabbed him with the knife. It was at that stage that some policemen came to the scene. The police arrested the respondent. The attacker was taken to a hospital. He died at the hospital of the knife injury inflicted on him by the respondent. The police detained the respondent before he was taken to a Magistrate Court for the offence of manslaughter. The respondent was remanded in prison custody by the magistrate. He stayed on remand for over 10 years without trial and/or awaiting his trial.

Fundamental rights proceedings were brought against the Commissioner of Police as the 1st respondent and the appellant as the 2nd respondent at the Court below. The Commissioner of Police and the appellant did not file affidavit evidence countering the case of the respondent that he was detained in prison without trial for over 10 years for the offence of manslaughter. The Court below accepted the one way affidavit evidence of the respondent upon which it awarded N7 million compensation to the respondent against the appellant and the Commissioner of Police, jointly and severally. The N7 million award was enforced by garnishee proceedings against only the appellant; hence the present appeal by the appellant alone.

In a brief of argument filed on 06-02-15, but deemed as properly filed on 29-09-15, the appellant distilled a single issue for determination from the two grounds of appeal contained in the notice of appeal filed on 23-02-12 vide pages 55 - 57 of the record of appeal (the record) thus "Whether the Appellant is liable for the detention of the Respondent who was arrested and detained by the Nigeria Police without proper arraignment

Citing Sections 2(2), 4(3), 211 and 215(2) of the Constitution of the Federal Republic of Nigeria 1999, as amended, (1999 Constitution) read with Sections 4 and 23 of the Police Act Cap, P.19 Laws of the Federation, 2004 (Police Act) as well as Section 74 of the Administration of Criminal Justice Law, 2011, of Lagos State which the appellant enjoined should be given their natural and ordinary meaning vide Global Excellence Communications Limited v. Duke (2007) 7 SC (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 523, the appellant submitted that the intention of the constitutional and the statutory provisions (supra) is to place the Attorney-General in charge of public prosecutions and not investigation and detection of crime which is the statutory responsibility of the Nigeria Police vide Onyekwere v. State (1973) 8 NSCC 250 at 255, Umoera v. COP (1977) 7 SC 13; that there is strict separateness of powers and functions between the Nigerian Police and the office of the Attorney-General vide Nwankwo v. Queen (1959) 4 FSC 274 and Sanusi v. Ayoola (1992) 23 NSCC (pt.111) 420 at 430; that, although the office of the Attorney-General occupies a very special position in the scheme of governance, cases brought to Court by the Police without forwarding duplicate case files with respect to them for the purpose of issuance of legal advice cannot be said to be within the constructive knowledge and control of the office of the Attorney-General vide Attorney-General of the Federation v. Ajayi (1996) 5 NWLR (pt.448) 283 at 290 and Section 74 of the Administration of Criminal Justice Law of Lagos State 2011 (ACJL); consequently, it was contended by the appellant that the Court below was wrong in holding that the office of the Attorney-General of Lagos State was accountable for all matters and issues relating to remand proceedings which is a ministerial responsibility based on strict liability and not dependent on the knowledge of the pending proceedings by the Attorney-Generals office; therefore it was finally urged that the over 10 years incarceration of the respondent in remand prison custody without trial had nothing to do with the appellant who was wrongly held liable for the incarceration by the Court below.

It was accordingly urged that the appeal should be allowed and the portion of the judgment of the Court below which found the appellant liable for the incarceration of the respondent for 10 years on remand in prison custody should be set aside together with the N7 million compensation awarded by the Court below against the appellant.

The respondents brief of argument filed on 21-09-15, but deemed properly filed on 29-09-15, identified the following issue for determination

Whether the Appellant is liable for the continued remand of the Respondent in prison for over ten years without trial.

The respondent pointed out in his brief that the responsibility of the police to arrest and investigate accused persons under Sections 4 and 27 of the Police Act 2004 (Police Act) were not in issue at the Court below, so the issue for determination formulated by the appellant is inappropriate and should not be countenanced.

The respondent further pointed out that the live issue at the Court below was the detention or remand of the respondent by a Magistrate Court for over 10 years without trial upon which the respondent based his application for the enforcement of his fundamental right to personal liberty which the Court below granted; therefore the respondent urged that the issue for determination in his brief of argument which is consistent with the live issue should be adopted and followed.

The respondent submitted that the relevant provisions of the 1999 Constitution Section 35(1)(c) and 35(4) should be given literal or ordinary interpretation vide Buhari v. Yusuf (2003) 14 NWLR (pt.841) 446 and Okoli v. Udeh (2008) 10 NWLR (pt.1095) 213.

Reference was made in the respondents brief to the Administration of Criminal Justice Law of the Lagos State 2007 (ACJL 2007) and its successor, the Administration of Criminal Justice Law 2011 (ACJL 2011) which provide procedural rules for pending and fresh criminal prosecution in the Magistrate Courts and the High Courts of Lagos State. Section 268(1) of ACJL 2007, now Section 264(1) of ACJL 2011 was referred to in particular for the contention that it places certain ministerial responsibilities on the appellant. Further reference was made to Section 264 (7) and (8) of ACJL 2011 (formerly Section 268 of ACJL 2007), Sections 71, 72, 74 (3) and (7) of ACJL 2011 and Section 211 of the 1999 Constitution for the submission that apart from the appellant being the Chief Law Officer of Lagos State and/or general counsel to Lagos State, the cited statutory and constitutional previsions place a burden on the appellant with certain ministerial responsibilities not only to undertake and take over criminal prosecution and/or discontinue such criminal prosecutions with respect to offences the Attorney-General of the State is authorised by law to prosecute, the appellant is further charged with the responsibility to monitor and control any remand proceedings for indictable offences in a Magistrate Court thus placing on the appellant the ministerial responsibility to intervene and discontinue remand proceedings in a Magistrate Court; so argued the respondent who concluded that the use of the phrase notwithstanding in Section 74(3) of ACJL 2011 gives the appellant the lee-way to exclude the application of Section 74(1) and (2) thereof vide Adedayo v. P.D.P (2013) 17 NWLR (pt. 1382) 1 at 55.

The respondent further contended that the provisions of ACJL 2011 cited (supra) complement the provisions of the 1999 Constitution cited (supra) on the imperative to prevent unlawful incarceration under the guise of remand proceedings which had been condemned earlier in the cases of Anaekwe v. COP (1996) 3 NWLR (pt. 436) 320, Onagoruwa v. State (1993) 7 NWLR (pt. 303) 49.

The respondent finally urged that the provisions of ACJL 2011 (Sections 71, 72 and 73 in particular) should be interpreted with a view to correct the mischief of unlawful remand vide Ugwu v. Ararume (2007) 12 NWLR (pt. 1048) 367 at 439; upon which the respondent advocated for the appeal to be dismissed and the decision of the Court below affirmed.

The Court below held in page 28 of the record that-

"The complaints of the Applicant in this instant case were not in respect of his arrest and detention by the police at the police station but in respect of his continued remand in prison by the Magistrate Court Six Ebute Metta without trial for over ten years."

The reliefs sought in the application at the Court below indicate in pages 3-4 of the record and paragraph 4 (m), (n), (o), (p), (q) of the verifying affidavit in page 6 of the record that they are in tandem with the holding (supra) of the Court below. There was no appeal against the said holding. It stands, in my view vide the case of Atanda v. Iliasu (2013) 6 NWLR (pt.1351) 529 at 558.

The respondent is accordingly, right in his contention that the issue for determination framed by the appellant does not flow along with the crux of the dispute placed before the Court below and subsequently decided by it in favour of the respondent and is incompetent vide Western Steel Works v. Iron and Steel Workers (1987) 1 NWLR (pt.49) 284 at 304 and Iyaji v. Eyigebe (1987) 3 NWLR (pt.61) 523.

Further the grounds of appeal in the notice of appeal in pages 55-56 of the record dwell on the remand proceedings, therefore the respondents issue for determination (supra) which tallies with the backbone of the dispute at the Court below as well as the grounds of appeal is apt and appropriate for the consideration of the appeal; and I hereby most respectfully adopt it for the resolution of the appeal.

The appeal is not so much on the division and distribution of statutory powers between the Nigeria Police and the appellant; nor does the appeal dwell on the sphere of authority of the appellant over the Nigeria Police, so the arguments in the briefs on the said issues do not appear germane to the determination of the present appeal and are hereby not countenanced.

In my considered opinion, the appeal has to do with the legal and constitutional consequences of the failure of the person or authority responsible for operating the remand proceedings regime in a Magistrate Court to intervene and put an end to the remand in prison custody of the respondent by the Magistrate Court which had run more than 10 years.

Of course the right to sue for redress of a violated fundamental right in the circumstances presented by this case was restated by the Supreme Court in the fairly recent case of Mohammed v. State (2015) 10 NWLR (pt. 1468) 496 at 512 per the lead judgment of Aka'ahs, J.S.C., thus-

"What the Constitution provides under Section 35 (4) (a) is to arraign him within two months. The appellant's remedy for the long incarceration without trial is the enforcement of his fundamental right to personal liberty. In the instant case the appellant was finally tried and convicted and would be entitled to enforce the right if his appeal succeeds. (My emphasis).

The Court below therefore looked aright, in my modest view, at the angle that the continued remand of the respondent in prison custody for over 10 years without trial infringed his fundamental right to personal liberty.

It is trite that by virtue of Section 35 (6) of the 1999 Constitution, any person who is unlawfully arrested or detained is entitled to compensation and public apology from the appropriate authority or person responsible for the incarceration; and by dint of the said section, a person who has established that he was unlawfully arrested and/or detained need not specifically ask for compensation before he is awarded one. The granting of compensation is automatic in such circumstances vide Jim-Jaja v. C.O.P. and Ors (2013) 6 NWLR (pt. 1350) 255.

The allegation in the case was manslaughter. It is an indictable offence triable in the High Court. It is not a capital offence. In the instant case, the matter was in the Magistrate Court on holding charge. Proceedings or trial of the case had not commenced. For it was held by the Supreme Court in the case of Audu v. A.-G., Federation (2013) 8 NWLR (pt. 1355) 175 at 202 per the lead judgment of His Lordship, Rhodes-Vivour, J.S.C., that in a criminal case, proceedings are said to have commenced or started with the reading of the charge sheet to the accused person. The taking of the case to the Magistrate Court was thus not for the trial of the case, but it was to act as a stop-gap for the subsequent trial of the case at the appropriate Court, if necessary.

The respondent however was not released on bail pending his proper arraignment, if found necessary. In between, the responsibility lay on the appellant through his subordinates to prepare legal advice for or against the prosecution of the respondent at the appropriate Court. It became a prosecutorial matter within the sphere of influence and control of the respondent under Section 211 of the 1999 Constitution to prepare for the prosecution of the respondent or to cause legal advice to be issued discharging the respondent within the timeline of not more than 3 months entrenched in Section 35(4) and 5(a) and (b) of the 1999 Constitution.
Section 72(1) of ACJL 2011 (which is the same as Section 72 of ACJL 2007) provides in that wise thus –

"(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."
And Section 74 (1), (2) and (3) thereof states thus-

(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), (6) 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 of 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. It is the duty of the Court to interpret the words of the law maker as used vide A.-G., Federation v. A.-G., Lagos State (2013) 16 NWLR (pt.1380) 249, 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.

Further, I adhere to the mischief rule which enjoins the Court to trace 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 by placing the remand proceedings under the watchful eyes and surveillance of the appellant as the Chief Law Officer of Lagos State.

In my respectful opinion, procedural laws of the sort under consideration in the appeal are enacted for the benefit of a defendant vide Okegbu v. The State (1979) 12 NSCC 151 at 174 per the judgment of Idigbe J.S.C., (of blessed memory) where His Lordship restated that such 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 which was cited with approval in Okegbu v. The State (supra) at 174. So I will give compulsory interpretation or meaning to the said provisions of the procedural law.

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 for legal advice from the subordinates 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 imperativeness of Section 74(3) of ACJL; and, based also on the fact that Section 74(3) of ACJL 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 Court below held in its judgment in page 28 of the record that –

A read through the provisions of the Administration of Criminal Justice Law of Lagos State 2007 shows that remand proceedings as provided for under Section 268 to 270 of the Law constitutes part of the prosecutorial process. This is particularly more so as Section 72 of the Law empowers the Attorney General to intervene in and discontinue remand proceedings against an accused person. The Attorney General of Lagos State is thus accountable for all matters and issues relating to remand proceedings. It is a ministerial responsibility owed by the Attorney General of the State and as such is a strict liability issue and is not dependent on his knowledge of the proceedings. These provisions impose on the second Respondent a heavy responsibility which includes taking concrete steps to make itself aware of all criminal prosecutions commenced in all the Courts in Lagos State either by way of a formal charge or by way of remand proceedings and whether they were commenced by its office or by other persons authorised to do so and to monitor such proceedings. The second Respondent must also have an up to date record of all the inmates in prisons in Lagos State, the reasons for their being in prison and for how long they had been in prison and constant monitor the stay of these persons in prison. The second

Respondent in this matter cannot thus be exonerated from the aftermath of the unlawful and illegal remand of the Applicant in prison without trial in the present case."

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 attractive. Because there is no indication in the record that the Commissioner of Police or the person(s) acting under him forwarded the case diary or 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. It follows logically and factually that the appellant was not cognizant of the pending remand proceedings.

The appellant relied on the doctrine of impossibility of performance expressed in the Latin Maxim - lex non cogit ad 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;

IMPOSSIBILITY OF COMPLIANCE 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 in the circumstances of the case where the appellant never knew of the pending remand proceedings, it was expecting too much statutory burden on the appellant to impute constructive knowledge of the pending remand proceedings on the appellant. Section 74(3) of ACJL 2011 would not serve as the platform to impute constructive knowledge of the remand proceedings on the appellant on the footing that it is intended to empower the appellant, regardless of the nature of the offence, whether triable on information as stated in Section 72(1) of ACJL 2011, or not triable on information, to unlimited powers to call for the duplicate case file for legal advice; and, which ministerial power is, in my considered opinion, expected to be exercised only in cases the appellant is aware of the remand proceedings; as the said ministerial power is not subject to executive control and makes only the appellant responsible for its exertion vide Abacha v. State (2002) 11 NWLR (pt.779) 437, Comptroller of Prisons v. Adekanye (2002) 15 NWLR (pt.790) 318.

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 respondents right to personal liberty in the circumstances of the case.

In the result I find merit in the appeal. I would allow the appeal and quash the decision of the Court below as it affects the appellant only.

Parties to bear their costs.

UZO I. NDUKWE-ANYANWU, J.C.A.: 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, J.C.A.: I read before now the JUDGMENT just delivered by my learned brother, JOSEPH SHAGBAOR IKYEGH JCA. I agree with his Lordships 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. I thought prison visits by Chief Judges were supposed to fish out and take action in cases such as this. For these cases to have escaped their attention there might be need to review their procedure. I abide by the consequential orders in the lead judgment including the order as to costs.


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

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