Chief Gani Fawehinmi Vs Col Halilu Akilu & Anor. (1987)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C. 

This appeal raises two important questions which will continue to be debated in legal circles for a long time. The 1st question touches the locus standi of the appellant to initiate and institute these proceedings in the High Court. In other words, has the appellant established his locus standi entitling him to seek leave of the High Court to apply for an order of mandamus’ PAGE| 2 The second question concerns the quantum or sufficiency of the facts deposed to and placed before the High Court in an application of this sort.

In other words, are the facts in the affidavit evidence sufficient to warrant the grant of leave to apply for the order of mandamus and serve the respondent with notice of the application? Did the applicant make out a prima facie case of failure by the respondent to carry out his statutory duty? These two questions, simple as they are on paper, evoked learned legal arguments from the appellant’s counsel which took us to an examination of the rights conferred on private criminal prosecutors by the Constitution of the Federal Republic of Nigeria 1979 and both the Criminal Code Law and the Criminal Procedure Law of Lagos State.

As these proceedings originated in the High Court of Lagos State, it is necessary at this juncture to trace briefly the history of the case from the High Court to the Court of Appeal and from thence to this Court. In the High Court of Lagos State holden at Lagos, the appellant, by originating motion ex pane dated 7th November, 1986 applied for: “an order for leave to apply for an order of mandamus compelling Mr. J.A. Oduneye, Director of Public Prosecutions, Lagos State, to exercise his discretion whether or not to prosecute Col. Halilu Akilu and Lt. Col. A.K. Togun for the murder of Dele Giwa and if he declines to prosecute to endorse a certificate to effect on the information submitted to him by the applicant on Monday the 3rd day of November, 1986 pursuant to section 342(a) of the Criminal Procedure Law Cap 32 Laws of Lagos State 1973.” PAGE| 3 The statement filed along with the application contained the grounds on which the said relief is sought.

They are two in number and read as follows: “1. Mr. J.A. Oduneye, Director of Public Prosecutions, Lagos State, has a duty under section 342(a) of the Criminal Procedure Law Cap 32 Laws of Lagos State 1973, upon an information being submitted to him by a private person, to endorse thereon, a certificate stating whether he is declining to prosecute the accused at the public instance.

2. The failure of Mr. J.A. Oduneye, Director of Public Prosecutions, Lagos State, to endorse a certificate on the information submitted to him by the applicant on Monday, 3rd November, 1986 amounts to a breach of his statutory duty under section 342(a) of the Criminal Procedure Law Cap 32 Laws of Lagos State.” Filed along with the motion ex pane for leave is a 14 paragraph affidavit, paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 11 of which I find pertinent and material for the purposes of this judgment. These paragraphs read as follows:

“1. That I am a citizen of Nigeria and a legal practitioner. 2. That Mr. Dele Giwa, Male, Nigerian of 25 Talabi Street, Ikeja. was my client and friend before his death; 3. That the said Mr. Dele Giwa was killed by a letter bomb on Sunday, 19th October, 1986 at his residence. 4. That after conducting private investigation and upon the facts at my disposal I prepared a two count information charging; (a) Colonel Halilu Akilu – Director of Military Intelligence; and (b) Lt. Colonel A.K. Togun – Deputy Director of the State Security Service with the murder of the said Mr. Dele Giwa; 5. That on Monday, 3rd November, 1986, I submitted to Mr. J.A. Oduneye, the Director of Public Prosecutions, Lagos State, the said information together with the proofs of evidence, for his certificate under section 342(a) of the Criminal Procedure Law of Lagos State. Copies of the information together with all relevant documents including the proofs of evidence are annexed herewith and marked Exhibit “GF”

PAGE| 4 6. That on Thursday, 6th November, 1986, I returned to the said Director of Public Prosecutions to obtain his certificate under section 342(a) of the Criminal Procedure Law Cap 32 Laws of Lagos State, 1973 but he told me orally that he could not come to a decision whether or not to prosecute the accused persons at public instance as per my information and proof of evidence.

7. That further to paragraph 6 above, the said Director of Public Prosecutions refused to give me his reply in a written form. 8. That by the failure of the said Director of Public Prosecutions to exercise his discretion under section 342(a) of the Criminal Procedure Law of Lagos State, it is impossible for me to apply for the consent of a judge of the High Court of Lagos State to the preferment of the information against the accused persons. 9. That by the said failure of the Director of Public Prosecutions to exercise his discretion one way or the other, I do not know whether or not the accused persons will be prosecuted for the murder of Mr. Dele Giwa. 10. That further to paragraph 9, the accused persons have not been arrested by the Nigeria Police Force and they are still moving freely within Nigeria; 11 That if the said Director of Public Prosecutions endorses his certificate on the information and declines to prosecute the accused persons at public instance, I will prosecute the accused persons according to the Laws of Lagos State in particular and those of Nigeria in general.”

The application ex parte came up for hearing before Candide Ademola Johnson, C.J. After hearing the applicant, the learned Chief Judge, in a reserved Ruling, dismissed the application and refused the leave to apply for an order of mandamus. But the learned Chief Judge conceded to the applicant the right to apply or present the application as a private person. The learned Chief Judge therefore considered it unnecessary to examine the issue of locus standi in detail.

The learned Chief Judge considered the provision of section 191 of the Constitution of the Federal Republic of Nigeria 1979 and the duty of the Director of Public Prosecutions as an officer in the Department in the charge of the Attorney- General. The learned Chief Judge then considered the conditions to be satisfied by the appellant to entitle him to the grant of leave to apply for an order of mandamus. These he stated to be (1) the existence of a special application and (2) the existence of a refusal by the respondent. These were the conditions stated in paragraph 1021 at page 324 of Vol. 16 English and Empire Digest. It reads – PAGE| 5 “A special application and refusal are conditions precedent to a mandamus to compel performance of a duty. No general declaration of the party not to perform the duty required supersedes the necessity of such application – R. v. Chapman (1845) 4 L.T.O.S. 332.”

The learned Chief Judge conceded that the appellant made a special application. He did not go beyond that. He then examined whether there was a refusal of the application. The learned Chief Judge appreciated the fact that a refusal need not be by words or positive words. The acts of the parties may tantamount to a refusal and it should be shown that in effect there had been a refusal. The learned Chief Judge then proceeded to hold:

“It appears to me important to appreciate that the need to endorse any certificate would only arise when a decision has been taken one way or the other. Here, as it appears, no decision has yet been taken… In my view, this is not strictly correct. Indeed, it is an erroneous statement of the law. This is evident from a close examination of the provisions of section 342(a) of the Criminal Procedure Law. That paragraph reads:

‘The registrar shall receive an information from a private person If it has endorsed thereon a certificate by a law officer to the effect that he has seen such information and declines to prosecute at the public instance the offence therein set forth.” The duty that the appellant complains of the respondent has not carried out is that “having seen the information and having failed to decide to prosecute at the public instance the offence therein set forth, the Director of Public Prosecutions refused to endorse thereon “that he has seen the information and declines to prosecute at the public instance the offence therein set forth.” Where a law officer expresses that he is unable to come to a decision to prosecute, it cannot be interpreted that he has come to a decision to prosecute. It is more consonant with reason to hold that at that point of time, he has declined to prosecute. The reason for taking such a stand is not relevant at this stage and need not be enquired into for the purpose of the application for leave. What is relevant is the failure or refusal (1) to take a decision to prosecute or not to prosecute and

(2) to endorse on the information that he declines to prosecute at public instance. PAGE| 6 The learned Chief Judge then proceeded to examine the affidavit evidence to ascertain whether there is evidence constituting a refusal which will entitle the appellant to seek an order to compel the respondent D.P.P. to act. After referring to paragraphs 4 to 6 of the affidavit, he considered and held that it was the duty of the police to conduct detailed investigation into crime to enable the D.P.P. and other law officers consider and decide on the merit of the report the justification for undertaking a prosecution or declining it. The decision to defer and investigate amounts to a refusal to prosecute the offences stated in the information on the proofs of evidence supplied at public instance. This is borne out by the last two paragraphs of the Ruling of the learned Chief Judge which read: “After all there is no time limit for the exercise of the power vested on the Attorney-General or the D.P.P. to prosecute, although one would expect such power to be exercised within a reasonable time. Even if one considers the reasonableness of time, I would say that the incident that gave birth to the death of Dele Giwa is not only unique in its form but also complex and would require sufficient time to conduct detailed and balanced investigation, a report on which the appropriate authority could reasonably act. The timing here appears hasty and premature.

It appears implusive without giving reasonable time and chance for a detailed and balanced investigation into this sordid incident.” It would appear the learned Chief Judge was looking beyond the compass of the application before him. He went far beyond to consider the merit of the case against the accused persons. The power the D.P.P. is to exercise at this stage is strictly limited. As indicated by the trend of his arguments, the learned Chief Judge dismissed the application for leave as misconceived. The appellant being dissatisfied with the decision appealed to the Court of Appeal. He filed five grounds of appeal which read:

“1. The learned trial judge erred in law in refusing the ex parts application: – Particulars of Error (a) It was clear that a prima facie case for the grant of leave was made out by the applicant. (b) The court at this stage should not be concerned with the totality of the strength or merits of the substantive application. PAGE| 7 2. The learned trial judge erred in law when he held that although the Director of Public Prosecutions had a discretion but that he could exercise the discretion at any time convenient to him; Particulars of Error (a) That in a private prosecution under the Laws of Lagos State, the stage of the exercise of the discretion is clearly delimited. (b) That the duty to exercise that discretion arises when the information is submitted by the private prosecution (prosecutor) and such duty is not at large. (c) It is only in public prosecution that the Director of Public Prosecutions can choose his time not when he has to determine whether or not to allow private prosecution.

3. The learned judge erred in law in coming to the conclusion that there must be a refusal before an order of mandamus can issue; Particulars of Error (a) By virtue of the decision in Shitia-Bey v. Federal Public Service Commission (1981) SC.40 at 52-53, it is not necessary that there must be in all cases a refusal before mandamus issues. (b) The duty of the Director of Public Prosecutions to exercise his discretion arises when a private prosecutor forwards his information to the Director of Public Prosecutions by virtue of section 342 of the Criminal Procedure Laws of Lagos State. 4. The learned trial judge erred in law in coming to the conclusion that the timing of the application is hasty and premature when neither the provisions of the Criminal Procedure Law of Lagos State nor the 1979 Constitution (as amended) prescribes the strength and time of presentation of the information by the private prosecutor.

5. The learned trial judge erred in law in determining the entire application for mandamus while determining the application for leave as the court should not be concerned with the strength or merits of the substantive application for mandamus at this state. PAGE| 8 At the hearing of the appeal, the issue of locus standi with the leave of the Court of Appeal was raised and arguments of counsel were heard on the matter. The Court of Appeal ruled against the appellant on the issue and held that he had no locus standi. On this issue, Nnaemeka-Agu, J.C.A. (as he then was) (with the concurrence of Kutigi and Kolawole, J.J.C.A.) said (after citing the provision of section 18(5) of the High Court Laws of Lagos State):

“Such personal and private interest has not been shown. It is clear that neither the fact that the appellant was a friend and counsel of the deceased, as he deposed to in his affidavit in support, nor the fact that he is seeking to be a private prosecutor if the respondent takes action under section 342 of the Criminal Procedure Law, for what I have said, is sufficient to give him locus standi. For these reasons, I should strike out the appeal on the ground that the appellant has no locus standi.” The learned justice then proceeded to consider the merit of the application.

The applicant submitted that an applicant for leave to apply for an order of mandamus is entitled to the leave sought once he has complied with the rules of court and procedure thereof. On the other hand, Mr. Oduneye submitted that the learned judge’s grant of the application is not automatic on the applicant complying with the rules. He submitted that the judge had a discretion to grant or not to grant it based on the affidavit and statement before the court.

The learned justice after quoting the dictum from the case of Rex v. Inland Revenue Commissioners ex parte National Federation of Self Employed and Small Business Ltd. (1982) AC 617 that the requirement of leave is designed: “to prevent the time of the court being wasted by busy-bodies with misguided or trivial complaints of administrative error, and to remove the uncertainty public officers and authorities might be left in as to whether they could safely proceed with administrative action when proceedings for judicial review of it were actually pending, even though misconceived.” rejected the submission of the appellant that the function of the learned Chief Judge at that stage was merely to be satisfied with compliance with the rules and that he had locus standi.

PAGE| 9 The learned Justice then examined the papers filed along with the information to see whether a prima facie case is established. The learned justice then said; “No, I have read the ruling of the learned C.J. over and over again. It appears to me that he refused to grant leave to the appellant on only one ground, that is that the respondent had not refused to do his duty under section 342 of the Criminal Procedure Law and that the circumstances of the case were such that he could not be forced to do so on the limited materials before him” …I believe the learned Chief Judge was right. 

For the general rule is that before the applicant is entitled to the order, he must have addressed a direct distinct specific demand or request to the respondent to do a duty imposed upon him by law and the respondent must have unequivocally, either expressly or by necessary implication manifested his refusal to comply ……. But on the facts of this case, there was neither an express refusal nor a delay or a persistent temporising and failure to give an answer that could by any stretch amount to a refusal … I therefore hold the view that ff he should signify without mature and full consideration that he would not prosecute the offenders and so signify as he is required to do under section 342 of the Criminal Procedure Law only to turn round at a later date when full investigations might have been completed to take over the prosecution as the appellant has suggested he would be seen as not having acted with that full sense of responsibility required of his office.

It is significant that section 191(3) of the Constitution enjoins that ‘in exercising his powers under this section the Attorney-General shall have regard to the public interest and the interest of justice and the need to prevent the abuse of legal process… What is disturbing in the judgments of the two courts below is the fact that the court took up the position of an advocate for the Director of Public Prosecutions. Without hearing from the D.P.P. the learned Justice of the Court of Appeal and the learned Chief Judge of Lagos State poured out on paper what must be his explanation for not endorsing the information that he declined to prosecute the accused on the materials available in the proof of evidence.

If an Attorney-General is entitled to enter a nolle prosequi at any time and at any stage of the proceedings before judgment, what prevents him from exercising his constitutional powers to take over and continue prosecution of the case from the private prosecution at any time and at any stage of the proceedings before judgment? I say nothing prevents him. PAGE| 10 The Court of Appeal on the merits dismissed the appeal on the ground that it is lacking in merits. The appellant was dissatisfied with the decision of the Court of Appeal and has appealed against that decision to this court on 5 grounds. These grounds without their particulars read: 1. The Court of Appeal erred in law in striking out the appeal on the ground that the appellant had no locus standi Particulars of Error

2. The learned Justices of the Court of Appeal misdirected themselves in law and thereby came to a wrong conclusion when they said: ‘Therefore a private person who takes out a mandamus to compel a public functionary to prosecute or to give himself a fiat to prosecute must first show that he has a locus standi’ Particulars of Error …………………………………………… 3. The learned Justices of the Court of Appeal misdirected themselves. in law and thereby came to a wrong conclusion with respect to locus standi of the appellant in this case when they held as follows per Nnaemeka-Agu, J.C.A., ‘Such personal and private interest has not been shown. It is clear that neither the fact that the appellant was a friend and counsel for the deceased as he deposed to in his affidavit in support, nor the fact that he is seeking to be a private prosecutor if the respondent takes action under section 342 of the Criminal Procedure Law for which I have said, is sufficient to give him a locus standi.’ Particulars of Misdirection …………………………………..……………

4. The learned justices of the. Court. of Appeal. erred in. law in dismissing the appeal by confirming the refusal of the trial judge of the High Court ‘to grant leave to the appellant on only one ground, that is that the respondent has not refused to do his duty under section 342 of the Criminal Procedure Law and that the circumstances of the case were such that he could not be forced to do so on the limited material before him. Particulars of Error ……………………………………………… PAGE| 11 5. The learned Justices of the Court of Appeal erred in law in considering and determining the merits of the substantive application for mandamus (yet to be filed) instead of restricting themselves to the consideration of the ex parte application for leave to apply for mandamus which was the matter before the High Court in relation to which an appeal was lodged. It is therefore apparent from the grounds of appeal that only the two issues earlier set out in the opening paragraphs of this judgment were raised. These are: (1) the issue of locus standi: and (2) the issue of quantum of proof of materials to support the application for the leave. I shall deal with these issues separately in the light of the powerful submissions of counsel. It is only on very rare occasions that the courts have cause to consider the question of locus standi in criminal proceedings.

It frequently arises for consideration in civil proceedings. Although it cannot be said that an application for an order of mandamus or the application for the grant of leave to apply for an order of mandamus in the circumstances of this case is not a civil proceeding, the main purpose of the order sought is to enable the initiation of criminal proceeding. A murder has been committed and a prosecution of suspects for the offence is desired. The questions may be asked: (1) whose rights are injured when a murder is committed? (2) on whom does our laws and Constitution confer power and impose obligations to prosecute for the offence? (3) are these rights and obligations common law rights and obligations or statutory rights and obligations? I proposed to approach these questions by dealing first with crime as a legal concept with particular reference to the offence of murder. PAGE| 12 When the crime of murder is committed, very many questions must be considered in order to arrive at the correct answer to the issue of locus standi. All recent judicial pronouncements on this issue have found inspiration and guidance from the provisions of section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1979 which reads:

‘The judicial powers vested in accordance with the foregoing provisions of this section – shall extend to all matters between persons, or between government or authority and any person in Nigeria and to all actions and proceedings relating thereto for the determination of any question as to the civil rights and obligations of that person.” See Senator Adesanya v. The President (1981) 2 NCLR.338 at 385. Irene Thomas v. Olufosoye (1986) 1 NWLR (Part 18) 669. On this issue of locus standi, the appellant submitted that he has locus standi to institute these proceedings having regard to the material facts disclosed in the affidavit evidence filed in support of the originating motion. These facts, he submitted, clearly constituted the cause of action. The appellant cited in support: (1) Adesanya v. President of Nigeria (supra) at p.385 per Bello, J.S.C. at 393 per Ohaseki, J.S.C. (2) Thomas v. Olufosoye (supra) at p.684 per Obaseki, J.S.C. (3) Attorney-General of Kaduna State v. Hassan (1985) 2 N.W. L.R. (Part 8) 483. (4) Orogan v. Soremekun (1986) 5 N.W.L.R. (Part 44) 688 at 700 (5) Egbe v. Adefarasin (1987) 1 N.W.L.R. (Part 47) p. 1 at p.20 per Oputa, J.S.C. (6) Kusada v. Sokoto Native Authority (1968) 1 All N.L.R. 377 at 381 per Lewis J.S.C. approving Pollock B in Read v. Brown (1889) and Brett. J. in Jackson v. Spittal. PAGE| 13 The appellant further submitted that the status of the appellant as a private prosecutor and the respondent as a public prosecutor is vested in them by law, – section 342 and 343 of the Criminal Procedure Law, Laws of Lagos State and section 191 of the Constitution of the Federal Republic of Nigeria 1979.

The rights and obligations conferred by these sections of the Criminal Procedure Law on the appellant and by section 191(1)(b) and (c) on the appellant and respondents are not common law rights but statutory rights and obligations. Civil rights and obligations in the context in which the term is used in provisions of section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1979 means all those obligations which the laws impose on a person. The appellant cited the definition of the term “civil right” given in the two American cases: (1) Bowles v. Habermann 95 N. Y.246, 247: (2) United States v. 24 Live Silver Black Foxes D.C. Wash, 1 F.2nd 933, 934. The appellant then emphasized that crime is an offence against the state. He maintained that the persons to avenge on behalf of the state are (1) the Attorney-General or any other law officer in the department of the Attorney-General as a public prosecutor, or (2) a private person as the appellant. He in conclusion cited section 12 of the Criminal Procedure Law Cap 32 Laws of Lagos State vol. 2 and section 130 of the Criminal Code of Lagos State Cap 31 Laws of Lagos State 1973 in support. The learned Solicitor-General who appeared for the learned D.P.P. -submitted that the appellant has no locus standi whatever. He submitted that it was the sole responsibility of the Attorney- General to initiate criminal proceedings. Following the appellant in this regard, the respondent identified three issues for determination. They are: (1) whether the appellant has a locus standi; (2) whether the appellant has established a prima facie case entitling him to the grant of leave to apply for an order of mandamus; and (3) whether the Court of Appeal considered and determined the merits of the substantive application for leave and if so, whether the approach of the Court of Appeal was wrong? Dealing with the issue of locus standi, the respondent submitted that the appellant has no locus standi. He agreed with the submission that the leading authority on locus standi in Nigeria is the case Senator Adesanya v. President of Nigeria (1981) 2 NCLR. 358 and the constitutional provisions in section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1979. PAGE| 14 He referred to the dictum of Bello, J.S.C. (as he then was) and submitted that the civil rights and obligations of the appellant have not been injured to give him standing to file this application. He submitted that the private person referred to in sections 342 and 343 of the Criminal Procedure Law of Lagos State is a private person whose legal right has been infringed and who also has a personal and private interest in the case. The learned Solicitor-General referred to section 18(5) of the High Court Law of Lagos State Cap 52 Laws of Lagos State as authority in support of his submission. He submitted that the fact of being a friend and lawyer of Mr. Dele Giwa (deceased) did not give him a personal and private interest. He went on to submit that sections 342 and 343 of the Criminal Procedure Law did not confer the right to bring criminal prosecution on any Dick, Tom or Harry but on any body who has a personal and private interest In the prosecution. The appellant, he concluded, could not come within the provision of section 6(6)(b). The learned Solicitor-General then cited the dictum in the case of Queen v. The Guardian of the Lewisham Union (1897) 1 QB 498 at 500 to emphasise the need for the appellant to have a legal specific right to ask for interference of the Court. He also referred to the dictum of Bruce, J. in the same case to the effect that any body who chooses to apply for a mandamus “should have a legal and specific right to enforce the performance of those duties.” Turning to the 2nd and 3rd issues, the learned Solicitor-General submitted that the appellant has not established a prima facie case entitling him to leave to apply for mandamus. He observed that the trial court considered the facts as deposed to by the appellant in his affidavit in support and also the proof of evidence in support of the two count charge on this information.

He contended that the appellant is not a party contemplated by section 191 of the Constitution of the Federal Republic of Nigeria 1979 but a busybody. The learned Solicitor-General referred to the proof of evidence supplied by the appellant as a collection of statements signed by the members and friends of the family of the deceased Dele Giwa and submitted that there was no investigation carried out and that the proof of evidence is one sided. He referred to areas of the matter not investigated by the appellant and said there was no opportunity given to Col. Akilu and Lt. Col. Togun to explain their roles. Learned Solicitor-General then went on to submit that an Attorney-General or the Director of Public Prosecutions worth his salt will hesitate to file the information that the appellant submitted to the respondent. The submission has more than anything also brought out more clearly the reaction of the respondent to the information. The reaction, in my view, is one of refusal to prosecute the offences stated in the information. It is because he has refused to endorse a certificate to that effect on the information that the appellant and the respondent are in court.

The D.P.P. has not been dragged to court because he declined to prosecute the offences stated in the information. He has not been blamed for following the dictates of subsection (3) of section 191 of the Constitution of the Federal Republic, 1979. He then went on to observe that it is not unusual for the D.P.P. to ask for more information from the police before he could come to a rational decision as to whether to prosecute or not to prosecute. If the D.P.P. requires more information, the issue of prosecuting does not arise.

The decision is clear. It is that he will not prosecute on the available material the offence stated. To contend that the respondent did not refuse to prosecute as the learned Solicitor-General contends is to run away from the obvious. Continuing his submission on the issue of establishing prima facie case, he contended that it is not merely satisfying sections 342 and 343 of the Criminal Procedure Law of Lagos State that confers on the appellant a prima facie case. He must show in his affidavit that his case is not frivolous and vexatious, he further contended and cited the dictum of Lord Diplock in the case of Rex v. Inland Revenue Commissioners ex parts National Federation of Self Employed and Small Business Ltd. (1982) AC 617 that the requirement of leave is designed: “to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints of administrative error, and to remove the uncertainty public officers and authorities might be left in as to whether they could safely proceed with administrative action when proceedings for judicial review of it were actually pending even though misconceived.”

I may observe that the learned Solicitor-General is trying by this argument to elevate the status of the law officer’s function under section 342(a) to that of the judge when consent to prosecute is sought under section 340(2) of the Criminal Procedure Law of Lagos State. The object of section 342(a) is to prevent double prosecution – one by the law officer and the other by the private person. Both the law officer and the private prosecutor will need to obtain the consent of the judge to file information where the accused has not been committed for trial after a preliminary investigation. The law and the Constitution have not imposed on or transferred to the law officers the function of the judge in this regard. PAGE| 16 The comment that it will be a sad day in the country, if anybody is allowed to bring any spurious criminal charge against a fellow citizen without proper investigations is therefore uncalled for. The barrier created by the requirement of consent of the judge to the filing of the information is the surest safeguard against such occurrences. It is a universal concept that all human beings are brothers and are assets to one another. All human beings living in the same country and being citizens of the same country are more closely related to one another and are in truth and in fact each other’s keeper than those living in countries separated by great distances. The death of one is a loss to the other whether by natural or felonious means.

The provisions of sections 126 – 130 of the Criminal Code Laws of Lagos State Cap 31 leave one in no doubt as to the obligations on every person in Lagos State to see that any criminal or offender is brought to justice and that no one help him to escape justice. So also are the provisions of sections 12, 59, 77 and 81 of the Criminal Procedure Law. Criminal Law is not like the law of procedure meant for lawyers only but is addressed to all classes of society as the rules that they are bound to obey on pain of punishment. Turning to the Lagos State Criminal Code, the provisions of section 126 – 130 which I find relevant and apposite are as follows: Section 126 deals with perverting justice and reads: “(1) Any person who conspires with another to obstruct, prevent, pervert, or defeat the course of justice is guilty of a felony and is liable to imprisonment for seven years. The offender cannot be arrested without a warrant. (2) Any person who attempts, in any way not specially defined in this code, to obstruct, prevent, pervert, or defeat, the course of justice is guilty of a misdemeanour, and is liable to imprisonment for two years. Section 127 deals with compounding felonies and reads: “Any person who asks, receives, or obtains or agrees or attempts to receive or obtain any property or benefit of any kind for himself or any other person upon any agreement or understanding that he will compound or conceal a felony, or will abstain from, discontinue or delay a prosecution for a felony or will withhold any evidence thereof is guilty of an offence. PAGE| 17 If the felony is such that a person convicted of it is liable to be sentenced to death or imprisonment for life, the offender is guilty of a felony and is liable to imprisonment for seven years. In any other case, the offender is liable to imprisonment for three years.

The offender cannot be arrested without a warrant,” Section 128 deals with compounding penal actions and I need not set out its provisions. Section 129 deals with advertising a reward for the return of stolen or lost property and it reads: “Any person who – (1) publicly offers a reward for the return of any property which has been stolen or lost, and in the offer makes use of any words purporting that no questions will be asked or that the person producing such property will not be seized or molested; or (2) publicly offers to return to any person who has bought or advanced money by way of loan upon any stolen or lost property the money so paid or advanced or any other sum of money or reward for the return of such property; or (3) prints or publishes any such offer; is guilty of a simple offence, and is liable to fine of one hundred Naira.” Section 130 of the Criminal Code deals with delay to take any person arrested before a court and reads: “Any person who, having arrested another upon a charge of an offence, wilfully delays to take him before a court to be dealt with according to law is guilty of a misdemeanour, and is liable to imprisonment for two years.” The law therefore imposes a duty on all persons not only to deprive criminals of all hiding places but to ensure that they are arrested, prosecuted and brought to justice.

On the issue of effecting arrest for crimes in Lagos State, section 12 the Criminal Procedure Law Cap 52 Vol. II Laws of Lagos State 1973 is explicit and very clear on the powers of a private person. It reads: PAGE| 18 “Any private person may arrest any person in the Lagos State who, in his view, commits an indictable offence, or whom he reasonably suspects of having committed an offence which is a felony or of having committed by night an offence which is a misdemeanour… This section read together with section 130 of the Criminal Code (supra) puts the right and duty of a private person In the prosecution of crimes beyond doubt and in proper perspective. On the issue of complaint, section 59 of the Criminal Procedure Law empowers anybody or any person to make a complaint against any other person alleged to have committed or to be committing an offence provided the enactment under which the offence is laid does not specify who the complainant shall be. It reads: “(1) Any person may make a complaint against any other person alleged to have committed or to be committing an offence unless it appears from the enactment on which the complaint is founded that any complaint for such offence shall be made by a particular person or class of persons, in which case only the particular person or a person of the particular class may make such a complaint. (2) Notwithstanding anything to the contrary contained in any enactment, a police officer may make a complaint in a case of assault even though the party aggrieved declines or refuses to make a complaint.”

In the instant case, the complaint on which the information was drafted is for the offence of murder. Murder is made an offence in section 315 and 316 of the Criminal Code. That section 316 reads: “Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say: (1) if the offender intends to cause the death of the person killed or that of some other person; (2) if the offender intends to do to the person killed or to some other person some grievous harm; PAGE| 19 (3) ………………………………………………………………………………………. (4) ………………………………………………………………………………………. (5) ………………………………………………………………………………………. (6) ………………………………………………………………………………………. is guilty of murder.” The Criminal Code does not by its provisions confine complaint in respect of this offence of murder to a particular person or class of persons. Any person who has sufficient information in his possession to establish the crime and identify the accused person is entitled to lay the charge. In the instant appeal, the appellant is eminently qualified under the law. The facts show that the appellant drafted the information charging the two accused persons, Col. Halilu Akilu and Lt. Col. A.K. Togun with the murder of Dele Giwa under section 316 of the Criminal Code and took it together with the proof of evidence on which the charge was founded to the respondent. He did not sign the information because section 341(1) of the Criminal Procedure Law Cap 32 Laws of Lagos State 1973 provides:

“All information shall, subject to the provisions of subsection 2 and section 342, be signed by a law officer.” The appellant is not a law officer as defined in section 2 of the Criminal Code Cap’31. Therein law officer is defined as meaning the Attorney-General and the Solicitor-General of the State and includes the D.P.P. and such other qualified officers by whatsoever names designated to whom any of the powers of a law officer are delegated by law or necessary intendment. There is provision for other public officer or person to sign information. It is subsection(2) of section 341 of the Criminal Procedure Law which reads: “Where the State Commissioner shall for reasons of public convenience think fit, an information may be signed by any other public officer or person whom the State Commissioner may delegate.” PAGE| 20 The conditions under which a private person can sign an information are set out in section 342 of the Criminal Procedure Law which reads: ‘The Registrar shall receive an information from a private person if –

(a) it has endorsed thereon a certificate by a law officer that he has seen such information and declines to prosecute at the public instance the offence therein set forth, and (b) such private person has entered into a recognizance in the sum of one hundred Naira, together with one surety to be approved by the Registrar in the like sum to prosecute the said information to conclusion at the times as which the accused shall be required to appear and to pay such costs as may be ordered by the court or in lieu of entering into such recognizance shall have deposited one hundred Naira in court to abide the same conditions.” 

It is only after complying with the above conditions that the appellant can sign the information and present it for the consent of the Judge to prefer the information in order that it can be filed in court and prosecuted. These are clearly stated in section 343 and section 340 of the Criminal Procedure Law Cap 32 which read as follows: Section 343: “Where any private person has complied with the provisions of section 342, the information shall be signed by such person and not by the law officer, or other person designated by the State Commissioner as aforesaid and such person shall be entitled to prosecute the information but nothing in this section shall be construed so as to exclude the provisions of section 8 of the Lagos State (Interim Provisions) Decree 1968, no information can proceed to trial without compliance with section 340. It reads:

“(1) Subject to the provisions of this section, an information charging any person with an indictable offence may be preferred by any person before the High Court charging any person with an indictable offence for which that person may lawfully be indicted, and whenever an information has been so preferred; the registrar shall, if he is satisfied that the requirement of the next following section has been complied with file the information and it shall thereupon be proceeded with accordingly. Provided that if the registrar shall refuse to file an information, a judge, if satisfied that the said requirements have been complied with may, on application of the prosecutor, or on his own motion, direct the registrar to file the information and it shall be filed accordingly;

(2) Subject as hereinafter provided, no information charging any person with an indictable offence shall be preferred unless either – (a) the person charged has been committed for trial, or (b) the information is preferred by the direction of or with the consent of a judge or pursuant to an order made under part 31 to prosecute the person charged for perjury;

PAGE| 21 Provided: (i) ………………………………………………………………………………………. (ii) ………………………………………………………………………………………. (3) If information preferred otherwise than in accordance with the provisions of the last foregoing section has been filed by the registrar, the information shall be liable to be quashed. Provided: (a) ……………………………………………………………………………….. (b) ………………………………………………………………………………………. I am aware of the powers of the Attorney-General of the State under section 191(1) of the Constitution of the Federal Republic of Nigeria, 1979.

The provisions of this section envisage a situation where a prosecution already commenced by a private person can be taken over and continued or discontinued. The private person could not, in view of the provisions of the Criminal Procedure Law as amplified and set out above have commenced the prosecution without compliance with the relevant sections of the Criminal Procedure Law.

More expressly, section 191 of the 1979 Constitution reads: “(1) The Attorney-General of a State 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 any law of the House of Assembly or an Edict promulgated by the Military Governor of a State; (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 PAGE| 22 (2) The powers conferred upon the Attorney-General under subsection (1) of this section may be exercised by him in person or through officers of his department. (3) In exercising his powers under this section, the Attorney-General shall have regard to the public interest, the interests of justice and the need to prevent abuse of legal process.”

The powers exercisable by the Attorney-General pursuant to section 101 (b) and (c) are unfettered. They are not fettered by any action he may have taken pursuant to section 342 of the Criminal Procedure Law to endorse on the information presented to him by the private person with a certificate that he has seen the information and declines to prosecute the offence set forth therein at public instance, That certificate will not deter him from taking over and continue the criminal proceedings instituted by the private person. The certificate will not bar him from discontinuing any such proceedings which have been instituted. It is therefore idle for the respondent to found the reasons for not making up his mind not to prosecute the offences stated in the information delivered by the appellant at public instance on the paucity of investigatory materials supplied and his desire to augment it by materials to be secured by him. The Constitution has given him latitude to conduct his own independent investigation and act on independent materials obtained as a result of such investigation.

The non-availability of such material and the inability of the D.P.P. to take a decision to prosecute will not and cannot affect the locus standi of the appellant to initiate these proceedings nor do they weaken the strength of the case for an order for leave to apply for an order of mandamus. The respondent is not entitled to obstruct the progress of the appellant in his attempt to effect compliance with the provisions of section 340, 342 and 343 of the Criminal Procedure Law by his adverse comment on the want or sufficiency of the evidence supplied by his proof of evidence while at the same time refusing to endorse the certificate of his disinclination to prosecute at public instance on the information. That adverse comment is reserved for the judge and the prerogative of the judge to make, If and when his consent to file the information is sought.

I am not concerned at this stage with the ascertainment whether the proof of evidence is sufficient to establish a prima facie case of murder against the accused. I am also not concerned at this stage with the ascertainment of the reasons for the refusal to endorse the certificate required. I am only concerned with the question whether the (D.P.P.) respondent, having seen the information and having failed to decide to prosecute at public instance is not under a duty to endorse the information with the certificate required to that effect. PAGE| 23 This issue was raised for the first time in the Court of Appeal. It was not raised in the High Court. Nevertheless, the learned trial judge conceded that the appellant had locus standi. This pronouncement was probably made to give prominence to the fact that he adverted his mind to the issue although the application for leave was ex parte. 

It is fundamental that an applicant for leave to apply for an order of mandamus must have locus standi to make the application before leave can be granted by the court. Indeed, the party making any claim and bringing any application before the court must have locus standi. See Senator Adesanya v. President of Nigeria (supra) Irene Thomas v. Olufosoye (supra) Amusa Momoh & Anor. v. Jimoh Olotu (1970) 1 All NLR. 117.

If the plaintiff has no locus standi, the court has no jurisdiction to entertain the matter and it must be struck out. See Oloriode & Ors. v. Oyebi & Ors. (1984) 5 SC. 1 at 28. When a party’s standing to sue (i.e. locus standi) is in issue, the question is whether the person whose standing is in issue is the proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable. Oloriode & Ors. v. Oyebi & Ors. (1984) 5 SC. 1 at 28 per Obaseki, J.S.C. Thus, one has to look at the cause of action and the facts of the case to ascertain whether there is disclosed a locus standi or standing to sue. Adesanya v. President of Nigeria (1981) 2 NCLR.358 at 393.

The cause of action, if any, will disclose facts from which it could be ascertained whether there is an infringement of or violation of the civil rights and obligation on the party which, if established before the court, will entitle him to relief or remedy. It is the contention of the respondent that the facts on which the application to the court are based are in respect of a crime and criminal prosecution and the civil rights and obligation of the applicant have not been infringed or violated by the murder of Dele Giwa.

The power to initiate criminal prosecution whether by the Attorney-General or by a private prosecutor or other authority is a right in the broad sense. It is recognised by the laws and the Constitution of the Federal Republic of Nigeria 1979. It is, in respect of the State, recognised by section 191 of the Constitution and, in respect of the Federation, it is recognised by section 160 of the Constitution. While the right of any other authority or person to institute criminal proceedings is recognised by the two sections, the two sections confer specific powers on the Attorney-General. PAGE| 24 (a) To institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court martial;

(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 by him or any other authority or person. The Criminal Procedure Law of the Federation and of the States make abundant provisions conferring powers of arrest and to undertake and institute criminal prosecution on private persons. Salmond on Jurisprudence 12th Edition at page 228 said. “yet another class of legal rights consists of those which are termed power” and at p.229:

“A power may be defined as ability conferred upon a person by the law to alter by his own will directed to that end, the rights, duties, liabilities or other, legal relations, either of himself or of other persons. Powers are either public or private. The former are those which are vested as an agent or instrument of the functions of the state; they comprise the various forms of legislative, judicial and executive authority. Private powers on the other hand, are those which are vested in persons to be exercised for their own purposes and not as agent of the state. Power is either the ability to determine the legal relation of other persons or ability to determine one’s own.

The first of these – power over other persons – is sometimes called authority’ the second – power over oneself – is usually termed capacity. The correlative of a power is a liability. This connotes presence of power in someone else; as against the person with the liability. It is the position of one whose legal rights (in the wide sense) may be altered by the exercise of a power…………………………………… The most important form of liability is that which corresponds to the various powers of action and prosecution. Such liability is independent of the question whether the particular action or prosecution will be successful and is therefore independent of (say) the duty to pay damages for a civil wrong. A tortfeasor is under a duty to pay damages for a wrong (this is called ‘tortuous liability’) and is liable to be sued in tort; but a person who has committed no tort is also liable to be sued in tort though in this case the action will fail.”

PAGE| 25 This brings me to the consideration of section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1979 and power. Power as rights in the wide sense must, in my view, be in contemplation of section 6(6)(b). This section expressly provides that: ‘The judicial powers vested in accordance with the foregoing provisions of this section in (b) shall extend to all matters between persons or between governments or authority and any person in Nigeria, and to all actions and proceedings relating thereto for the determination of any question relating to the civil rights and obligations of that person” Can it be said that there is no question relating to the civil rights and obligations of the appellant?

There certainly is a question raised about the right of the appellant to have endorsed on the information submitted to the D.P.P. and the duty of the D.P.P. to endorse on the information a certificate that he has seen the information and he declines to prosecute at public instance. This question arises as a result of the refusal of the D.P.P. to endorse the certificate on the information as required by section 342(a) of the Criminal Procedure Law. Although the information Is initiating criminal prosecution, the application for the order for mandamus is a civil proceedings so also the application for leave. Adesanya v. President of Nigeria (supra) and Irene Thomas v. Olufosoye (supra) are both in respect of a civil cause or matter and provide sound and solid authority for the locus stencil of the appellant.

The narrow confines to which section 6(6) (b) restricts the class of persons entitled to locus standi in civil matters have been broadened by the Criminal Code, the Criminal Procedure Law and the Constitution of the Federal Republic of Nigeria 1979. The powers of arrest and prosecution conferred by the various sections of the Criminal Procedure Law and the Criminal Code on “any person” has the magic effect of giving locus standi to any person who cares to prosecute an offender if, and only if, he saw him committing the offence or reasonably suspects him of having committed the offence. Criminal Law is addressed to all classes of society as the rules that they are bound to obey on pain of punishment to ensure order in the society and maintain the peaceful existence of society. The rules are promulgated by the representatives of society who form the government or the legislative arm of government for the benefit of the society and the power to arrest and prosecute any person who breaches the rule is also conferred on any person in the society in addition to the Attorney-General and other law officers for the benefit of the society.

PAGE| 26 The peace of the society is the responsibility of all persons in the country and as far as protection against crime is concerned, every person in the society is each other’s keeper. Since we are all brothers in the society, we are our brother’s keeper. If we pause a little and cast our minds to the happenings in the world, the rationale for this rule will become apparent. There have been cases where brother assaults or kills brother, cases where a father assaults or kills his son, where a son kills his father, where a husband kills his wife and where a wife kills her husband. If consanguinity or blood relationship is allowed to be the only qualification for locus standi, then crimes such as are listed above will go unpunished, may became the order of the day and destabilise society. Can it be said that the death of Dele Glwa is not as much a sad and bitter loss to his friend, lawyer and confidant as it is to his family? The answer to the first question, therefore, in my view, is in the affirmative, that is that the appellant has locus standi. The right of private persons to initiate criminal proceedings is not a new creation. It has existed from colonial times and even before colonial times. In England, it is not unknown and it is referred to in paragraph 97 of Vol.ll Halsbury Laws of England 4th Edition page 68 which in part reads:

“In the absence of statutory provisions to the contrary any person may of his own initiative and without any preliminary consent institute criminal proceedings with a view to an indictment but there are some statutes which require that certain criminal proceedings should be undertaken only by order of a Judge or by the direction or with the consent of the Attorney-General, the D.P.P. or some other official persons or body…….” That therefore brings me to the question of mandamus. It appears to me that the learned trial Judge, Candide Ademola Johnson, C.J. and the learned Justices of the Court of Appeal failed to address their minds to the real issues before them. With respect, in is my view that they averted their minds more (1) to the merit of proof of evidence compiled by the appellant in support of the charge of murder, (2) to the insufficiency of the time given by the appellant for a reply from the respondent and (3) the need for the respondent to conduct his own independent investigation of the crime than to the failure of the respondent to carry out a simple statutory public duty. An order of mandamus is directed to an individual, body, tribunal or inferior court requiring the performance of some specified thing in the nature of a public duty appertaining to his office.

The performance of the duty need not involve a judicial function. In the instant appeal, the duty the respondent is required to perform does not involve a judicial function. PAGE| 27 The law is certain that the proposed recipient of the order must be an individual, body, tribunal or inferior court with a public duty to the applicant. It is not available where there is no duty but only a discretion [see R v. Northumberland Quarter Sessions ex p. Williamson (1965) 2 All E. R. 87 (1965) 1 W.L.R. 700; Re: Fletcher’s Application (1970) 2 All ER. 57.] The duty must be reasonably certain [R. v. Wilts & Barks Canal Co. (1912) 3 KB. 623] but may be a duty to exercise a discretion [R. v. Vestry of St. Pancras (1890) 24 QBD. 371; Padfield v. Minister of Agriculture, Fisheries and Food (1968) AC. 997 (1968) 1 All E.R. 694 HL; R. v. Beacontree J.J. ex p. Mercer (1970) Cr. LR. 103.].

The appellant, as a person, a Nigerian, a friend and legal adviser to Dele Giwa, deceased, has a right under the Criminal Procedure Law to see that a crime is not committed and if committed, to lay charge for the offence against any one committing the offence in his view or whom he reasonably suspects to have committed the offence. The law has given every person that right in order to uproot crime from our society.

The respondent as a law officer who has seen the information drawn up by the appellant and has declined to prosecute the offence therein stated at public instance is under a clear duty to endorse a certificate to that effect on the information. Since the respondent has failed to carry out the statutory duty, the appellant is justified in bringing this application for the order of mandamus by a two stage procedure. The 1st stage is to apply ex parte for leave to apply for the order.

The Rules of Court and the Law prescribe this. Thus, it is first necessary to obtain leave to apply for the order of mandamus. See Halsbury Laws of England 4th Edition Vol. ll paragraph 1523 et seq. High Court of Lagos State (Court Procedure) Rules Order 53 Rule 1(1) What is the purpose of the leave? It is the requirement of the Rules of Court. It is also to ascertain the locus standi of the applicant.

Above all, it is to prevent the time of the court from being wasted by busybodies with misguided trivial complaints of administrative error, and to remove the uncertainty public officers and authorities might be left in as to whether they could safely proceed with administrative action when proceedings for judicial review of it were actually pending, even though misconceived [see Rex v. Inland Revenue Commissioners ex p. National Federation of Self Employed and Small Businesses Ltd. (1982) AC. 6/7.] PAGE| 28 The appellant cannot be described as a busybody with misguided complaints. The Criminal Code and the Criminal Procedure Law of Lagos State, in so far as prevention of crime and punishment of those committing crimes are concerned, have made every one of us, nay, all Nigerians, our brother’s keeper.

The second stage of the application comes when leave is granted. It is then that the substantive application is heard. When leave to apply for the order of mandamus has been granted, the applicant must serve an originating motion on all persons directly affected. A copy of the statement must be served with the notice of motion. An affidavit of service must be sworn.

The respondent may file an affidavit. Further affidavits may be lodged by the applicant but the Judge or court may decline to consider them. In short, documents used in the first stage are also used in the second stage. The court may refuse to make an order of mandamus: (1) unless it has been shown that a distinct demand for performance of the duty has been made and that the demand has deliberately not been complied with – R. v. Wilts & Barks Canal Co. (1835) 3 Ad & E.C. 477; R. v. Stoke-on-Trent Town Clerk (1912) 2 KB. 518; (2) where there is undue delay; (3) where the applicant’s motives are unreasonable. On the two main issues raised in this appeal. I find for the appellant. The appeal succeeds and is allowed.

The decisions of the Court of Appeal and the High Court are hereby set aside and in their stead, it is ordered that leave be granted to apply for an order of mandamus. Leave is hereby granted. The application or originating motion on notice is to be filed and served in the High Court and the matter is remitted and shall be tried or heard by another Judge to whom it shall be assigned by the learned Chief Judge of Lagos State. The appellant is entitled to costs fixed at N300.

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Other Citation: (1987) LCN/2012(SC)