Federal Republic of Nigeria v Osahon and Others (SC 23/2004) [2006] NGSC 6 (16 February 2006)

THE FEDERAL REPUBLIC OF NIGERIA (APPELLANT) v. OSAHON AND 7 OTHERS (RESPONDENT)

(2006) 1 All N.L.R. 374

Division: Supreme Court of Nigeria

Date of Judgment: 17 February 2006

Case Number: SC 23/2004

Before: Salihu Modibbo Alfa Belgore? Idris Legbo Kutigi? Aloysius Iyorgyer Katsina-Alu? Dahiru Musdapher? Ignatius Chukwudi Pats Acholonu? Mahmud Mohammed? Walter Samuel Nkanu Onnoghen, JJSC

Belgore, JSC (Delivered the Leading Judgment):- The appellant by an amended charge was before the Federal High Court, Lagos Division (Nwodo, J), charging the respondents with various offences under Miscellaneous Offences Decree (Act) of 1984. The prosecutor was Nuhu Ribadu. By a Motion on Notice the second, third, fourth, fifth, sixth, seventh, eighth and ninth defendants (now first to the eighth respondents) prayed for the charge to be quashed upon the following grounds:-

(i) Under section 174(1)(a) of the 1999 Constitution, only the Attorney-General of the Federation is empowered to institute and undertake criminal proceedings against the second to the ninth accused persons in respect of offences created under the Miscellaneous Offences Decree (formerly Special Miscellaneous Offences Decree) No 20 of 1984.

(ii) The powers conferred on the Attorney-General of the Federation under section 174(1)(a) of the 1999 Constitution can only be exercised by him in person or through officers of his department.

(iii) The Prosecutor in these proceedings and/or other persons assisting him are Police Officers and are not officers of the Attorney-General of the Federation's office/department.

(iv) The Charges and/or the Amended Charges herein are an abuse of legal process.

The supporting affidavit pointed out that the Prosecutor, Nuhu Ribadu, was a police officer in Nigeria Police Force and that all those assisting him to prosecute were similarly police officers. It was further deposed in the affidavit that it was believed the appropriate authority empowered to institute and undertake criminal proceedings against the respondents herein in respect of offences created under Miscellaneous Offences Act is the Attorney-General of the Federation or through officers in his Ministry. As Nuhu Ribadu and other police officers with him now prosecuting were not officers in the Attorney-General Department and they had no fiat of the Attorney-General to prosecute the matter, the charges should be quashed.

In a counter-affidavit sworn to by an Inspector-General of Police, Mr Paul Okafor, it was deposed that the police did not need the fiat of the Attorney-General of the Federation to prosecute the offences under Miscellaneous Offences Act by virtue of section 23 of Police Act (Cap. 359 Laws of the Federation of Nigeria, 1990).

It was further deposed that though the Attorney-General and members of his department could prosecute, the police equally could prosecute under the Act.

In her ruling dated 18 July 2001, Nwodo, J referred to section 56 of the Federal High Court Act which reads:

"In the case of a prosecution or on behalf of the Government of the Federation or by any public officer in his Official capacity, the Government of the Federation or that officer may be represented by a law officer, State Counsel, or by any legal practitioner duly authorised in that behalf by or on behalf of the Attorney-General of the Federation."

And held that the law officers specified in the section are of two categories, to wit, the law officers in Ministry of Justice and law officers in other government departments. She therefore came to the conclusion that like officers who are legally qualified (in this case officers called to Nigerian Bar) can prosecute without the fiat of the Attorney-General and that there was no violation of section 174 of the Constitution of the Federal Republic of Nigeria, 1999.

Against this decision an appeal was lodged at the Court of Appeal, Lagos Division. Before setting out the issues for determination in that Court. It is pertinent to set out the Grounds of Appeal for better appreciation:

2.      Grounds of Appeal

Error in Law

The learned trial Judge erred in law when she held:-

"In the present case there is no evidence to show that Attorney-General desires or has entered the arena. Until then, the present prosecutor who is not just a police officer but a legal practitioner and entitled to practice in all courts in Nigeria, has the vested right to initiate and prosecute this case."

Particulars:

(i)     A "police officer" is not one of the officers authorised in section 56(1) of the Federal High Court Act to represent the government of the Federation in the case of a prosecution by or on its behalf in the Federal High Court and it does not matter if the Police officer is a Social practitioner or not.

(ii)    The specific provisions of section 56(1) of the Federal High Court Act which govern the category of officers that can represent the Government of the Federation in the case of a prosecution by or on its behalf in the Federal High Court and excludes "police officers" should have been invoked by the learned trial Judge over the general powers of prosecution contained in section 23 of the Police Act.

(iii)   Under section 56(1) of the Federal High Court Act a "legal practitioner" cannot represent the Government of the Federation in a prosecution by or on its behalf in the Federal High Court unless he is authorised by the Attorney-General of the Federation.

(iv)   To promote the general purpose of the Legislature and the spirit of the Miscellaneous Offences Act or Decree only the Attorney-General of the Federation or any person duly authorised by him can prosecute any offence under the Act or Decree.

(v)    Ab initio, the present prosecutor though a police officer and a legal practitioner does not have a vested right to initiate and prosecute this case on behalf of the government of the Federation in the Federal High Court

2.      Error in Law

The learned trial Judge erred in law when she held:-

"Therefore one can conveniently hold that the word law officer as envisaged in section 56(1) of Federal High Court Act extend to law enforcement officers such as police officer."

Particulars

(i)     A "police officer" is not a law officer within the meaning of section 3 of the Law Officers Act Cap. 204 laws of the Federation.

(ii)    "Law officer" as envisaged in section 56(1) of the Federal High Court Act and the Law Officers Act does not extend to law enforcement officers such as police officers.

(iii)   Since section 56(1) of the Federal High Court Act expressly excludes a "police officer" from the category of officers that can represent the government of the Federation in the case of a prosecution by or on its behalf in the Federal High Court, the police officer prosecuting this case cannot prosecute this case under the guise of a "law officer."

3.      Misdirection in Law

After conceding that there was no express provision in the Federal High Court Act giving a police officer the right to prosecute in the Federal High Court, the learned trial Judge misdirected herself in law when she held thus:

"I do concede that there is no express provision in the Federal High Court Act but like I earlier discussed, it does not expressly exclude police officers. I dis-agree most respectfully with Counsel that the case of Olusemo is not applicable. Granted, the law in that case was on the penal code and rested on the Federal Capital Territory, Abuja High Court Act. The principle of law discussed on the right of a police officer to prosecute is the same as the present case."

Particulars:

(i)     The absence of express provision in the Federal High Court Act allowing a police officer to prosecute meant that "police officer(s)" were expressly excluded.

(ii)    Once the learned trial Judge conceded that the Federal High Court Act did not expressly provide for a police officer to prosecute in the Federal High Court she was left with no option but to hold that the prosecution of the appellants was incompetent and an abuse of court process.

(iii)   The facts, circumstances and principle of law of this case are clearly distinguishable from the case of Olusemo v COP (1998) 11 NWLR (Part 575), page 547 and particularly, section 56(1) of the Federal High Court Act was not considered by the Court of Appeal in Olusemo's case.

(iv)   Section 98(1) of Federal Capital Territory, Abuja High Court Act considered in the case of Olusemo v COP (supra), recognises that a "law officer" is different from a "police officer" and specifically allows a "police officer" to represent the "State" in the case of a prosecution in the Abuja High Court.

4.      Relief sought from the Court of Appeal

That the Appeal be allowed and the ruling of the learned trial Judge dated the 18 July 2001 be set aside. On those Grounds of Appeal the solo issue for determination by the appellants therein (now respondents) is as follows:-

"Under section 56(1) of the Federal High Court Act, only a law officer, a state Counsel or legal practitioner duly authorised by the Attorney-General of the Federation can represent the government of the Federation in a prosecution by or on its behalf in the Federal High Court. Can a Police Officer (irrespective of being called to the Nigerian Bar) represent the government of the Federation in the Federal High Court?"

In their brief the respondents as appellants in the court below adverted to several cases including Awobute v The State (1976) All NLR 237, 253? Layiwola & Others v The Queen (1959) 4 FSC 119 and Law Officers Act (Cap. 204 Laws of the Federation of Nigeria, 1990) to demonstrate who is a law officer. The appellants further advanced a canon of interpretation that where there are two laws, one specific and the other general, and they are in conflict on the same issue or subject-matter, the specific law should be followed and referred to Ezeadukwa v Maduka (1997) 8 NWLR (Part 518) 635. Finally it was submitted that the criminal proceedings as initiated by the Police Officers was totally incompetent, null and void by relying on Okafor v The State (1976) 5 SC 13? Onwuka v The State (1970) 1 All NLR 159? Queen v Owo (1962) 1 All NLR 659, 666, 667. A distinction was pointed out between section 98 Federal Capital Territory Act and section 56 of the Federal High Court Act which reads:

Section 98 of the FCT Act provides:

"In the case of a prosecution by or on behalf of the State or by a public officer in his official capacity, the State or that officer may be represented by a Law Officer, Director of Public Prosecutions, State Counsel, Administrative Officer, 'POLICE OFFICER', or by any legal practitioner or other person duly authorised in that behalf by or on behalf of the Attorney-General or, in revenue cases, authorised by the head of the department concerned." (Emphasis mine.)

While section 56 of the Federal High Court Act provides:

"In the case of a prosecution by or on behalf of the government of the Federation or by any public officer in his official capacity the government of the Federation or that officer may be represented by a law officer, State Counsel, or by any legal practitioner duly authorised in that behalf by or on behalf of the Attorney-General of the Federation." (Emphasis mine.)

The present appellant as respondent set out two issues for determination as follows:-

1.      Can an accused person, or even a court, object to the Counsel representing the complainant in a criminal matter on the ground that the said Counsel did not obtain the authority of the Attorney-General of the Federation when the Attorney-General himself did not so object?

2.      Can a legal practitioner who is a Police Officer be barred from acting as Counsel to the Federal Government of Nigeria in a criminal matter in the Federal High Court merely because he does not have a Fiat (i.e. a legal instrument issued in writing) or even the authority of the Attorney-General of the Federation?

The main plank of the respondent's argument was that it was not the business of the appellants as defendants in trial court to question who prosecuted on behalf of the Federal Government. Reference was made to Nigerian Union of Railwaymen v Nigerian Railway Corporation (1996) 9 NWLR (Part 473) 490, 504. The second issue as proposed, seemed to be in the alternative to the first issue? where the provision of a statute is in conflict with the Constitution, the Constitution shall prevail and the statute will be void to the extent of the inconsistencies? section 56 of Federal High Court Act, though not inconsistent with section 174 of the Constitution, the operative word is "may" which is not compulsive but discretionary.

Court of Appeal found favour with the argument of the appellants before it. Juxtaposing section 98(1) of the High Court Act (FCT) with section 56 of the Federal High Court Act, it came to the conclusion that the latter Act deliberately excluded Police Officers from prosecution and thus allowed the appeal. Thus, this appeal to the Supreme Court. Because of the importance of this matter to the legal profession and its constitutional implications the court asked for briefs from amici curiae to wit, Chief Bayo Ojo, SAN then President of the Nigerian Bar Association and Olujinmi SAN, the then Attorney-General of the Federation. Chief Ojo is now the Attorney-General of the Federation and has abandoned his brief as President N.B.A. and adopts the brief of his predecessor in office which is not much different from his own. Now, we have the briefs by parties to this appeal and the brief of Attorney-General of the Federation as amicus curiae Counsel for the appellant, Alhaji Abdullahi Ibrahim, SAN, formulated only one issue for determination reading as follows:-

Issues for determination:

Having regard to the ground of appeal filed in this appeal, the appellant contended that there is one issue arising for determination in this appeal and that is - Whether the Court of Appeal was right when in interpreting section 56(1) of the Federal High Court Act, section 23 of the Police Act and section 174(1) of the 1999 Constitution, came to the conclusion that the police officers prosecuting the respondents lack the competence to initiate or conduct prosecution before the Federal High Court.

This issue is based on the Grounds of Appeal filed. It must be pointed out that some facts are not disputed, to wit:-

"(i) The suit has been instituted by a police officer who is also a qualified barrister and solicitor of the Supreme Court of Nigeria by virtue of Legal Practitioners Act and ostensibly entitled to practice before any court, whether a superior Court of record or not.

(ii) It is also true he never filed the suit (criminal charge) with the fiat of the Attorney-General of the Federation as the charge relates to federal offences i.e. offences under the statute/Act of National Assembly."

However, the big issue is whether a police officer, legally qualified to practice law in all courts in the Federation by virtue of his having been called to Nigerian Bar under Legal Practitioners Act, can institute criminal proceedings without the fiat of the Attorney-General of the Federation. To answer this all important question, it is pertinent to refer to the relevant Acts of National Assembly vis-à-vis the provisions of the Constitution of Federal Republic of Nigeria, 1999. Sections 56(1) and 57 of the Federal High Court Act read as follows:-

"Section 56(1)

Section 57

In the case of prosecution by or on behalf of the Government of the Federation or by any Public Officer in his official capacity the Government of the Federation or that officer may be represented by a law officer, state Counsel, or by any legal practitioner duly-authorised in that behalf by or on behalf of the Attorney-General of the Federation.

All persons admitted as legal practitioners to practice in Nigeria shall, subject to the provisions of the Constitution and Legal Practitioners Act have the right to practice in the court."

The Federal High Court held by virtue of the above provisions and relative to provisions of section 174(1) of the 1999 Constitution the legally qualified police officer can file criminal charges and prosecute in all courts in the country subject to the exception in those constitutional provisions. The court considered the Police Act in section 23 thereof reading:-

"Section 23 Subject to the provisions of section 174 and section 211 of the Constitution of the Federal Republic of Nigeria (which relate to the power of the Attorney-General of the Federation and of the State to institute and undertake, take over and continue criminal proceedings against any person before any court in Nigeria) any police officer may conduct in person all prosecutions before any court whether or not the information or complaint is laid in his name."

And read it along with section 174(1)(a), (b) and (c) of the Constitution, (supra) to come to its decision. The Court of Appeal held otherwise. I think the argument that seemed to persuade the Court of Appeal is in the argument of the present respondents as appellants calling the Police Act a general Act and the Federal High Court Act as a specific Act. That dichotomy certainly swayed the court below. That decision, to my mind is misplaced. In the present appeal, it seems the Attorney-General of the Federation as amicus curiae followed that general line in the brief filed. If the Police Act was made by National Assembly, so is the Federal High Court Act. There is no magic wand behind the phrase "any court" in the Police Act? the same phrase has been employed in section 174(1)(a) of the Constitution. The cases of Araka v Egbue (2003) 17 NWLR (Part 848) 1, Ezeadukwa v Maduka (1997) 8 NWLR (Part 518) 635, 657, are far from relevant to the present issue before us. Where two provisions, one each from an Act of National Assembly conflict in relation to the same subject-matter, as in this instance, question of right to prosecute criminal matter in the Federal High Court, the conflict cannot be isolated to the two provisions only insofar as there are constitutional provisions on the same matter. In such a situation the provisions of the Constitution shall govern the interpretation. The Constitution of the Federal Republic of Nigeria, 1999 provides as follows:-

"Section 174(1) of the Constitution provides:

174  (1)    The Attorney-General of the Federation 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 an Act of the National 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." (Emphasis supplied.)

The question of specific provision or general provision of any enactment will disappear in the face of clear provisions of the Constitution. The Constitution without any ambiguity, recognises as section 174(1)(b) provides:-

"any such criminal proceedings that may have been instituted by any other authority or person."

The same "any other authority or person" appears in section 174(1)(b). If there is any aspect of ambiguity, it could be the word "person." The Police Force is an authority of the Federal Government. But as the Constitution provides "any person," does it mean that a flood-gate is opened for all persons (whether legally qualified or not) to prosecute criminal proceedings in any court in Nigeria?

The Constitution of any country is the embodiment of what a people desire to be their guiding light in governance, their supreme law, fountain of all their laws. As such, the Constitution is not at any given situation expected to or presumed to contain ambiguity. All its provisions must be given meaning and interpretation even with the imperfection of the legal draftsman. Common sense must be applied to give meaning to all its sections or Articles. To appear in all superior courts of record in Nigeria to prosecute any case, civil or criminal, the person is presumed to be a legal practitioner as provided in Legal Practitioners Act. So, the words "any . . . person" presumes as "represented by a legal practitioner" and for "any other authority" presupposes that authority could be represented by a legally qualified person either in that authority or engaged for the purpose by that authority. For example, in cases of negative averment whereby a person has defaulted in paying his taxes, the Board of Inland Revenue can engage services of a legal practitioner or a legally qualified employee of the Board to prosecute the defaulter. It does not mean however that in all cases, a legally qualified person must appear. It is only desirable, because superior courts of record have attained the tradition of only legal practitioner, in the main, prosecuting cases, whether civil or criminal before them.

Section 56(1) Federal High Court Act, cannot in the face of section 174(1) of the Constitution (supra) take over for interpretation under the canon of construction - "expressio unius est exclusio alterius." The Constitution must prevail. Police authority can, by virtue of the aforementioned provisions of section 174(1) of the Constitution prosecute any criminal suit either through its legally qualified officers or through any Counsel they may engage for the purpose. (See NPF v Adekanye (No 1) (2002) 15 NWLR (Part 790) 318, 329,). "Any other authority or person" can definitely institute criminal prosecution. The powers of the Attorney-General of the Federation or of the State are not exclusive, any other person or authority can prosecute. However, the Attorney-General can take over or continue the prosecution from any such authority or person. He can also discontinue by way of nolle prosequi. Once the Constitution is clear and unambiguous on this issue the defects in section 56(1) of the Federal High Court Act affect only appearance but its omission of "any other person or authority" has not brought it into conflict with the Constitution, its inadequacy is merely procedural. It is clear in section 57 of the Federal High Court Act that all legal practitioners have right of appearance in Federal High Court. But I am of the view that section 57 (supra) is not of any help in dealing with section 56(1). But the use of the phrase "subject to" in section 23 of the Police Act in reference to section 174(1) of the Constitution is clear that Constitutional provision will govern in case of doubt. Therefore, the argument which carried the day in the lower court as regards section 56(1) (supra) in respect of expressio unius est exclusio alterius will not work with the Constitution. The Constitution cannot be strictly interpreted like an Act of National Assembly or a Law of State Assembly. As I said earlier, it must be construed without ambiguity because it being fountain of all the laws, it is not supposed to be ambiguous. It must be literally interpreted so that every section therein will have meaning. All canons of construction will not abate but will be employed with great caution. (See PDP v INEC (1999) 11 NWLR (Part 626) 200, 243.) Therefore when the Constitution is clear as to its intendment on any subject, the courts in giving construction thereto, are not at liberty to search its meaning beyond it. Any power given by the Constitution, cannot therefore be taken away by any Act of National Assembly or law of a state or a subsidiary legislation. (See Nkwocha v Governor of, Anambra State (1984) 1 SCNLR 634? Landboye v Ogunsiji (1990) 6 NWLR (Part 155) 210? Adisa v Oyinwola (2000) 10 NWLR (Part 674) 116, 215). As I posited earlier, the Constitution is not to be construed with any ambiguity or mistake by its framers, it must not be subordinated to any other law and in construction must not be subjected to indignity of deletion of any section or part thereof.

The provisions of section 56 Federal High Court Act have not closed the category of those who could prosecute criminal cases in the Federal High Court? have they purported to do so, they will conflict with section 174(1) of the Constitution. (Attorney-General Ondo State v Attorney-General Ekiti State (2001) 17 NWLR (Part 743) 706, 770 paragraphs A-B). The Police Act in section 23 is made subject to section 174 and 211 of the Constitution. The Constitution cannot be trivialised or be in terrorem of any law. The use of the phrase "subject to" as in section 23 (supra) is a very clear manifestation of the provisions of the Constitution vis-à-vis any other law. (Tukur v Governor of Gongola State (1984) 4 NWLR (Part 117) 517? Labiyi v Anretiola (1992) 8 NWLR (Part 258) 139, 163, 164).

In the face of provisions of the Constitution, the Acts or Laws of the country brood no ground for classification into specific or general provisions to defeat the Constitution. I can at any rate find no conflict between the provisions of section 23 Police Act and section 56(1) Federal High Court Act once they are juxtaposed and then read with section 174(1) of the Constitution.

Kalgo, JCA (as he then was correctly summed up the situation in Olusemo v Commissioner of Police (1998) 11 NWLR (Part 575) 547, 558, when he said:-

"By these provisions the Attorney-General of the Federation and of the State as the case may be, are themselves empowered to institute and undertake any criminal proceedings in any court in Nigeria and if any other person or authority instituted or undertook any such criminal proceedings in any court in Nigeria, within their respective jurisdictions, they have the power to take it over, continue or discontinue at any stage of proceedings?

In the instance, the power to prosecute or undertake criminal prosecution is vested in the Police officer under section 23 of the Police Act subject to the exercise of powers conferred on the Attorney-General by the provisions of section 160 of the Constitution. It is very clear and without any doubt that the Attorney-General of the Federation has not exercised his powers under section 160 of the Constitution in the instance case. Therefore, the Police officers powers to prosecute in the criminal proceedings in this case is not limited, restricted or controlled. Mr Ehindero qua Police Officer is competent to prosecute in these proceedings in any court in Nigeria including the High Court." (Emphasis supplied.)

His Lordship continued:-

"Since the applicant's main objection was the appearance of Mr Ehindero in the High Court, it is necessary to examine the relevant provisions of the FCT High Court Abuja as contained in Cap. 510 of the Laws of the Federation of Nigeria, 1990."

The case decided clearly that Mr Ehindero A.I.G. (as he then was) as a legally qualified person, could prosecute any criminal case in any court in Nigeria.

From the colonial period up to date, police officers of various ranks have taken up prosecution of criminal cases in Magistrates' and other courts of inferior jurisdiction. They derive their powers under section 23 of the Police Act. But when it comes to superior courts of record, it is desirable, though not compulsory that the prosecuting Police Officer, ought to be legally qualified. This is not deleting from provisions of section 174(1) of the Constitution, rather it maintains age long practice of superior courts having Counsel rather than by persons in most cases prosecuting matters. The confusion that this matter has caused is rather unfortunate for trial of criminal cases? it has caused a disturbingly long delay. Previous Constitutions before 1979 provided for the post of Director Public Prosecutions, an independent officer, with powers in a statute. The absence of this vital office from subsequent constitutions has created this dilemma. But the worrisome side of this case is the failure of the Attorney-General to take over the prosecution. Perhaps the witnesses in the substantive prosecution are still available. Justice seems to suffer some delay in this case.

For the foregoing reasons, I allow this appeal and hold that a Police Officer can prosecute by virtue of section 23 of the Police Act, section 56(1) of the Federal High Court Act and section 174(1) of the Constitution of the Federal Republic of Nigeria, 1999. I therefore set aside the decision of Court of Appeal and restore the ruling of Federal High Court.

Kutigi, JSC:- This is an appeal against the judgment of the Court of Appeal, Lagos wherein the Court set aside the Ruling of the Federal High Court, Lagos and held that the appellants being Police Officers are not law officers as envisaged by section 56(1) of the Federal High Court Act, 1990 and thus not capable of initiating and or undertaking the prosecution of cases in the Federal High Court. The Court of Appeal therefore struck out the charges preferred against the respondents in the Federal High Court.

Being aggrieved by the decision of the Court of Appeal, the appellant has appealed to this Court. Only one issue has been submitted for determination. It reads:-

"Whether the Court of Appeal was right when in interpreting section 56(1) of the Federal High Court Act, section 23 of the Police Act and section 174(1) of the 1999 Constitution, came to the conclusion that the Police Officers prosecuting the respondents lack the competence to initiate or conduct prosecution before the Federal High Court."

It is clear to me that the answer to this all-important question can only b