Chief Gani Fawehinmi V. Inspector-general Of Police (2002)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C. 

By an originating summons filed by the appellant on 7 October, 1999 at the Federal High Court, Lagos, he sought inter alia an order of mandamus to compel the respondents to investigate criminal allegations which he made against Governor Bola Ahmed Tinubu of Lagos State. It is unnecessary to go into the details of the said allegations, or of the procedural skirmishes at the trial court, except to say that on 14 December, 1999, Egbo-Egbo, J., who presided, dismissed the summons upon a preliminary objection raised that by virtue of section 308 of the 1999 Constitution, the Governor enjoyed immunity from being investigated in respect of the said criminal allegations.

On the view taken in respect of section 308 of the Constitution that there was immunity against investigation, the appellant appealed to the Court of Appeal, Lagos Division. The respondents cross appealed against the court’s findings as to the admissibility of certain documents (exhibits GFI, GF2 and GF3) and also as to the locus standi of the appellant to institute the action. On 5 June, 2000, the Court of Appeal in a considered judgment concluded

(1) that although the respondents (the police) have a discretion in matters of crime investigation, they were not precluded by section 308 of the 1999 Constitution from investigating allegations of crime committed by persons occupying the offices named therein;

(2) that in the circumstances of this case no order of mandamus compelling the respondents to investigate the allegations made against Governor Bola Ahmed Tinubu would be made; and

(3) that the appellant had the locus standi to institute the action.

As to exhibits GF1, GF2 and GF3 in question which were admitted in evidence by the trial court, the view of the court below was clearly that being uncertified public documents, they were inadmissible.

The appellant has further appealed to this court; so have the respondents cross appealed. The appellant in the main appeal set down two issues for determination thus:

“1. Whether the Court of Appeal was right in refusing to make an order of mandamus on the respondents where the performance of specific public duty has been clearly found established against the respondents.

2. Whether the provisions of section 4 of the Police Act, Cap. 359, Laws of the Federation of Nigeria, 1990 allow for the exercise of discretion by the Police on whether or not to investigate allegations of crime.”

The respondents formulated two issues also as follows:

“1. Whether the Court of Appeal has discretion to make an order of mandamus or to refuse it having regard to the circumstances of the case in question and the provision of section 308 of the 1999 Constitution.

2. Whether the respondents have discretion either to investigate or not every allegation of crime reported and the manner and mode of carrying out their investigations having regard to the provision of section 4 of the Police Act, Cap 359 Laws of the Federation of Nigeria 1990.”

I think the issues as formulated by the parties are the same if only the question of discretion is taken as implied in the appellant’s issue 1. I shall treat both issues together. The submission of the appellant in respect of the two issues can be briefly put. The appellant at both the trial court and the court below established that the respondents are public officers who, by virtue of the Police Act, have a duty of seeing and ensuring that crime is prevented and detected, that offenders are apprehended, that there is preservation of law and order, that there is protection of life and property and that there is due enforcement of all laws and regulations. This is so because the Nigeria Police was set up for the purpose, and given the duty, of ensuring public peace and security, and obedience to the law. In that regard, they must investigate all allegations of crime. The court below having acknowledged that the respondents have a duty under section 4 of the Police Act to investigate all allegations of crime levelled against any person, was wrong to refuse to make an order of mandamus compelling them to investigate the appellant’s allegation that Mr. Bola Ahmed Tinubu, Governor of Lagos State made false declaration and false statement both under oath when he was about to stand election for Governor.

The appellant relies on Glossop v. Heston and Isleworth Local Board (1879) 12 Ch.D. 102 where at pp. 115-116, James L. J. observed inter alia that: “A mandamus might, on proper evidence of refusal be applied for in the Queen’s Bench Division in the exercise of its great prerogative jurisdiction to compel all bodies having an authority to perform the duties the legislature had imposed on them. That mandamus might be applied for by any individual who could show sufficient cause, and the Court might grant it if it could see that something the public body ought to do was neglected to be done.” He then makes the following submissions in his brief of argument:

“5.21. I submit that where the statute creating the duty admits of no exercise of discretion on the part of the obligor, id est, person under obligation to perform the duty imposed therein, then an order of mandamus must of necessity be granted by the court in so far as other conditions are satisfied by the applicant.