Director Of Public Prosecutions V. Michael Akozor (1962)
LawGlobal-Hub Lead Judgment Report
UNSWORTH, F.J
This is a reference by the Chief Justice of the High Court of Lagos under section 108 of the Constitution. The reference is in the following terms:-
1. On the 17th February, 1961, the Union Trading Company Limited brought a private prosecution in the Chief Magistrate’s Court, Lagos, against the defendant wherein he was charged on six charges, namely, five charges to make a false entry contrary to Section 438(b) of the Criminal Code, and one charge of destroying a document contrary to Section 390 (6) of the Criminal Code. Mr Impey, a private legal practitioner, acted for the complainant.
2. In the course of the trial the Director of Public Prosecutions directed that all the proceedings be discontinued and the defendant was accordingly discharged.
3. On the 29th March, 1961, the Director of Public Prosecutions instituted fresh proceedings against the defendant on similar charges, and a preliminary enquiry began at which Mr Impey, instructed by the Director of Public Prosecutions, appeared to prosecute with Mr Peters, a Crown Counsel
4. Mr Okafor, on behalf of the defendant, objected to Mr Impey appearing on the ground that section 97 of the Constitution of the Federation of Nigeria precludes the Director of Public Prosecutions from instructing a private legal practitioner to appear in a criminal case either alone or with himself or another member of his staff.
5. Mr Impey contended that the Director of Public Prosecutions had the necessary power and that, in any event, section 76 of the Magistrate’s Court (Lagos) Ordinance applied.
6. On the 14th July, 1961, the Chief Magistrate referred the following questions (as amended) to this Court, in accordance with section 108 of the Constitution:
1. Whether the Director of Public Prosecutions has power, having regard to section 97 of the Constitution, to instruct a private legal practitioner to appear in a criminal case on his behalf;
2. Whether, if the Director of Public Prosecutions has such power and has instructed a private practitioner, he or a member of his staff can appear with the legal practitioner so instructed.
7. This Court being of the opinion that the questions involve substantial questions of law hereby refer to the Federal Supreme Court agreeably with section 108 of the aforesaid Constitution.
The reference does not follow the form now prescribed by Order VI Rule 1 of the Rules of the Federal Supreme Court, 1961, but nothing turns on the point. I mention it only lest the form used in this case might otherwise be followed elsewhere. Section 97 of the Constitution is as follows:-
97.
(1) There shall be a Director of Public Prosecutions for the Federation, whose office shall be an office in the public service of the Federation.
(2) The Director of Public Prosecutions of the Federation shall have power in any case in which he considers it desirable so to do-
(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 Act of Parliament;
(b) to take over the continue any such criminal proceedings that may have been instituted by any other person or authority; and
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.
(3) The powers of the Director of Public Prosecutions of the Federation under subsection(2) of this section may be exercised by him in person or through members of his staff acting under and in accordance with his general or special instructions.
(4) The Director of Public Prosecutions of the Federation may confer a general or special authority upon the Director of Public Prosecutions of a Region to exercise, subject to such conditions and exceptions as he may think fit, any of the powers conferred upon him by subsection (2) of this section in relation to prosecutions in that Region and may vary or revoke any such authority.
(5) The powers conferred upon the Director of Public Prosecutions of the Federation by paragraphs (b) and 9c) of subsection (2) of this section shall be vested in him to the exclusion of any other person or authority:
Provided that, where the other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority at any stage before the person against whom the proceedings have been instituted has been charged before the court.
(6) In the exercise of the powers conferred upon him by this section the Director of Public Prosecutions of the Federation shall not be subject to the direction or control of any other person or authority.
(7) For the purpose of this section any appeal from any determination in any criminal proceedings before any court of law or any case stated or question of law reserved for the purposes of any such proceedings to any other court or to Her Majesty in Council shall be deemed to be part of those proceedings.
(8) The provisions of this section shall apply-
(a) in relation to any offence created by or under any law in force in the Federal territory, not being an offence created by or under an Act of Parliament; and
(b) in relation to any offence created by or under any law in force in a Region relating to any matter included in the Exclusive Legislature List or the Concurrent Legislative List, not being an offence created by or under an Act of Parliament or a law made by the Legislature of that Region, as they apply in relation to an offence created by or under an Act of Parliament.
It has been submitted to us that a private practitioner appearing as an advocate in this case was “instituting and undertaking” a criminal prosecution within the meaning of paragraph (a) of subsection (2) of section 97 and that in the case commenced or taken over by the Director, these powers can only be exercised by the Director himself or by members of his staff, under subsection (3) of that section.
It cannot be contended that this prosecution was instituted by the legal practitioner. The prosecution referred to in paragraph 2 of the reference was instituted by the private prosecutor, and the prosecution referred to in paragraph 3 of the reference was instituted by the Director of Public Prosecutions. The argument (as I understand it) is that the addition of the words “and undertake” in section 97 means that the Director or his staff must appear personally and cannot brief a legal practitioner to appear on behalf of the Director. I do not think that the wording can be construed in this way. The wording of section 97(2) 9a) is similar to the wording in the Prosecution of Offences Act, 1879, which gives the Director of Prosecutions in England power to “institute, undertake or carry on” criminal prosecutions, and these words have never been construed under that Act as meaning that the Director of Public Prosecutions cannot brief Counsel to appear on his behalf. The words “institute and undertake” mean that the Director and his staff can commence and make themselves responsible for criminal prosecutions, and not that they cannot brief private practitioners to appear on behalf of the Director either alone or together with a member of the Directors staff.
The decision that I have reached on this reference is as follows:
(1) The Director of Public Prosecutions has power, having regard to section 97 of the Constitution, to instruct a private legal practitioner to appear in a criminal case on his behalf;
(2) the Director of Public Prosecutions or a member of his staff can appear with a legal practitioner so instructed.
Answer to Question (1): The Director of Public Prosecutions has power, having regard to section 97 of the Constitution, to instruct a private legal practitioner to appear in a criminal case on his behalf.
Answer to Question (2): The Director of Public prosecutions or a member of his staff can appear with a legal practitioner so instructed.
Other Citation: (1962) LCN/0964(SC)
