Attorney-general Of Kaduna State V. Mallam Umaru Hassan (1985)

LawGlobal-Hub Lead Judgment Report

A. G. IRIKEFE, J.S.C. 

Following upon an outbreak of communal violence at JIKAMSHI VILLAGE, in the KANKIA LOCAL GOVERNMENT AREA OF KADUNA STATE, one ABDUL RASHID UMARU lost his life, and arising therefrom, certain villagers were arrested and charged with the culpable homicide not punishable by death of the said ABDUL RASHID UMARU.

After a preliminary hearing at the Magistrate’s Court, some of those arrested were committed for trial at the High Court. After arraignment at the High Court and the recording of pleas, the Solicitor-General of Kaduna State, MR. J. B. MAIGIDA who was leading the prosecution on behalf of the State, entered a note prosequi in respect of the charges, stating that he did so, in reliance upon Section 130(1) C.P.C. and Section 191(2)(c) of the Constitution of Nigeria, 1979. Thereupon, the learned trial Judge, AROYEWUN, J. struck out the charges, resulting in the discharge of the accused persons.

The respondent to this appeal Mallam Umaru Hassan, the father of the deceased ABDUL RASHID UMARU, being aggrieved by the action of the Solicitor-General, initiated the instant proceedings by means of an originating summons seeking a declaration on the incompetence of the Solicitor-General to terminate the criminal proceedings as he had done. For ease of understanding, I shall set out in full the affidavit grounding the originating summons as well as the summons itself.

Affidavit in support of originating summons.

I, Mallam Hassan Umaru (m) Moslem, Farmer, Nigerian citizen of Jikamskhi Village, Kankia Local Government Area, Kaduna State make oath and say as follows:-

1. That I am the plaintiff in the above suit.
2. That one Abdul Rashid Umaru now deceased is my son.
3. That the said Abdul Rashid Umaru died on 1/2/81 in suspicious circumstances.
4. That on 4/2/81 I identified the corpse of my said son at the Ahmadu Bello University Hospital Kaduna to the doctor who performed the post-mortem examination.
5. That following the death of my said son, the police arrested the following persons namely:-

Alhaji Idi Shugaba, Alhaji Dogara Aliyu, Alhaji Garba Abdullahi, Alhaji Balla Keffi and Alhaji Yaro Tella amongst others and charged them before the Chief Magistrate Court, Kaduna for the homicide of my said son.

6. That on 21/4/81 in Suit No. KMD/13x/81, I testified as a witness for the prosecution during the Preliminary Inquiry conducted by the court in respect of my said son’s death.
7. That at the end of the Preliminary Inquiry, the enquiring magistrate held that a prima facie case in respect of the culpable homicide of my said son has been made out against the following persons namely:- Alhaji Idi Shugaba, Alhaji Dogara Aliyu, Alhaji Garba Abdullahi, Alhaji Balla Keffi and Alhaji Yaro Tella and committed them for trial at the High Court, Kaduna.
8. That the case came up for hearing before the High Court on 29/3/82 as Suit No.KDH/28/81.
9. That when the case came up before the High Court, the Solicitor-General of Kaduna State invoked powers of the Attorney-General of the State under Section 191(2) of the Constitution of the Federal Republic of Nigeria, 1979 and applied to withdraw the charges against the aforesaid accused persons.
10. That on 30/3/82, the trial Judge struck out the case on the ground that since the Solicitor-General represents the Attorney-General of the State, and as the State does not intend to continue with the trial that he has no choice other than to strike out the charges against the aforesaid accused persons and the charges were struck out accordingly. A copy of the proceedings before the court is hereby annexed as appendix ‘A’ to this affidavit.
11. That I know as a fact, that there is no person occupying the office of the Attorney-General of Kaduna State of Nigeria and to the best of my knowledge, the powers of the Attorney-General of Kaduna State have not been delegated to the Solicitor-General of Kaduna State.
12. That I swear to the contents of this affidavit conscientiously and sincerely believing the same to be true by virtue of the Oaths Act, 1963″

The annexure to the affidavit reads:-

“In the High Court of Kaduna State of Nigeria

Judicial Division

Holden At Kaduna

KDH/28/81

29th March, 1982

THE STATE