F.O.M. Atake V. Chief Nelson Asigboro Afejuku (1994)
LawGlobal-Hub Lead Judgment Report
BELLO, C.J.N.
The Complainant was a judicial officer as a Judge of the High Court of the former Bendel State. He retired as such on 30th September, 1977. On the 11th of April, 1990, he instituted in the High Court of Lagos State a private prosecution against the defendant upon five charges of publication of defamatory matters of him in the Vanguard Newspaper in its issue of 17th of February, 1990 and thereby committed an offence in respect of each charge contrary to section 375 of the Criminal Code of Lagos State.
Before the trial of the case, the defendant raised a preliminary objection that having regard to the decision in Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt.102)122, the complainant had no locus standi to institute criminal proceedings in Lagos against the defendant by way of private prosecution. Also, suo motu Kessington J. before whom the preliminary objection was taken raised another preliminary issue on the interpretation of section 256(2) of the Constitution of the Federal Republic of Nigeria 1979 as to whether the Complainant, being a retired judicial officer, was entitled to conduct the prosecution of the case in person. After having heard the arguments of counsel for the parties on the two preliminary matters, the Judge in his ruling dismissed the preliminary objection of the defendant but held that by virtue of section 256(2) of the Constitution the Complainant could initiate the case but was barred from prosecuting it. He struck out the case on this latter ground.
Both parties were not satisfied with the ruling. The Complainant appealed to the Court of Appeal against the order striking out his case on the ground of the constitutional issue while the defendant cross-appealed against the dismissal of his preliminary objection.
After the parties had filed their briefs in the Court of Appeal but before the hearing of the appeal, the Complainant applied to that Court requesting it to refer the constitutional issues and the attendant question of locus standi raised in the appeal to this Court for decision. In accordance with the decision of this Court in Adesanya v. President of Nigeria (1981) N.S.C.C. 146, the Court of Appeal did not hear and determine the appeal. It granted the request and on the facts of the case, which I had already stated, referred the following questions to this court for decision under section 259(3) of the Constitution which provides:-
(3) Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Court of Appeal and the court is of opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests refer the question to the Supreme Court which shall give its decision upon the question and give such directions to the Court of Appeal as it deems appropriate.
The questions referred are as follows:-
(A) Does section 256(2) of the Constitution of the Federal Republic of Nigeria 1979 bar a judicial officer who has ceased to be one from appearing before a Court or Tribunal to conduct in person a case to which he is a party (in the instant case a complainant in a criminal case).
(B) If it does, and the judicial officer who has ceased to be one has already appeared before the Court to conduct in person a case in which he is a party is it a proper application of section 256(2) for the Judge before the case is being heard to strike out the entire suit-
(i) at all,
(ii) Without giving the retired Judge an opportunity to brief counsel to conduct the case on his behalf.
(C) Does section 340(2) of the Criminal Procedure Law of Lagos State Cap. 32 Vol.2 Laws of Lagos State 1973 as amended, apply to all offences as implied in the judgment of Karibi- Whyte, J.S.C. or to indictable offences only as stated in the judgment of Bello, C.J.N in Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) page. 122.
Both parties filed briefs in this Court and emphasised the salient points by oral argument at the hearing of the reference. In respect of question No.6(A), the Complainant contended that Kessington J. had erred in law when he held that the Complainant, being a retired Judge, could not conduct and prosecute the case in
person because of the provision of section 256(2) of the Constitution. He argued that the subsection read with the definition of ‘Legal Practitioner’ under section 24 of the Legal Practitioners Act 1975 only precluded a retired Judge from appearing and acting as a legal practitioner in a court of law and it did not bar him, the Complainant, from conducting and prosecuting personally the case of which he was party.
Buttressing his argument that to appear and act as legal practitioner there must be rendering before the court a legal service to a client, he referred to Blacks Law Dictionary 5th Edition page 1055, R. J. Edwards Inc. v. Hart OKL 504 P2nd 407 at 416; Rhode Island Bar Association v. Lesser 68 p. 1 1426 A 2nd 6 and State v. Schumacher 214 Kan 11510 P.2nd L15, 1227.
He further argued that by denying him to prosecute the case personally, Kessington J. had deprived him of his right to a fair trial under section 33(1) of the Constitution and in accordance with the dictum of Nnaemeka-Agu J.S.C. in Okoduwa v. The State (1988) 1 N.S.C.C. (Pt.1) 718 at 733; (1988) 2 NWLR (Pt.76) 333, fair hearing includes giving to a party or a legal practitioner of his choice the opportunity to present his case before an impartial court or other tribunal. He also stated that the Judge had denied him of his right to prosecute the case under section 211 (1) of Criminal Procedure Law of Lagos State.
The Complainant also referred us to section 24(7) and 220 of the Indian Constitution, which is in pari materia with our section 256(2) and which ban and prohibit an ex-Judge from practice. However, he did not cite any case on the interpretation of the sections. Igbal Ahmed v. Alahabad Bench (1950) S.C.J. 131 (F.C.) referred to by the Complainant is not relevant to the circumstances of the case before us. He urged the Court to answer the question in the negative. The substance of the contention of learned counsel for the defendant in respect of question 6(A) is that the Complainant, being a retired Judge, could not by virtue of section 256(2) of the Constitution prosecute the case in person and must brief counsel to do it for him. In his brief, he indulged himself into jurisprudence on the concept of a ‘person’ and “second person as expressed in Dias Jurisprudence 5th Ed. and Salmon on Jurisprudence 12th Ed. He cited Re King’s Will Truts (1964) CH 542 (1961) AC 12; Rowtley Holmes & Co. v. Barber (1977) 1 All. E.R. 801; Lee v. Lee Air Farming Ltd ab1960) 3 All ER 420 and Solomon v. Solomon and Co. Ltd. (1897) A.C. 22. In parenthesis, I may state that I have been unable to appreciate the relevance of these cases to the present case subject to this reference.
Learned counsel submitted in his brief that the Complainant as a legal practitioner was rendering the services of a legal practitioner for and on behalf of himself in the case and he, the Complainant, had cited authorities copiously and skillfully as any other competent legal practitioner of his maturity and experience would have done. He gave as an example R. v. Aluko (1963) All NLR 398 which according to him the Complainant had cited. He did not show the page in the records of reference where the case was cited and I am unable to find the case in both the old and new (1963) All Nigeria Law Report Volumes. He submitted that it is trite law that the right to cite authorities in our courts is a monopoly of legal practitioners but did not support the assertion with any authority. He urged us to hold that the Complainant was engaged in the practice of law and appeared and acted as a legal practitioner in the case which was a violation of section 256(2) of the Constitution. In making this submission learned counsel stated that he was not unmindful of section 17(2) of the Constitution, Fawehinmi v. N.B.A (1989) 2 NWLR (Pt.105) 494 at 532 and Okoduwa v. The State (1988) 2 NWLR (Pt.76) 333. He then dealt with the provision of section 33(6) of the Constitution which guarantees every person charged with a criminal offence the right to defend himself in person or by a legal practitioner of his own choice.
Finally, he contended that section 211 (1) of the Criminal Procedure Law was inconsistent with section 256(2) of the Constitution and was therefore void. The provisions of the Constitution prevailed. He invited us to answer the question positively.
There is no doubt that by virtue of section 33(1) of the Constitution, which reads:-
‘In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality’
The Complainant is entitled to fair hearing in the prosecution of his case and ‘fair hearing’ includes giving to a party or a legal practitioner of his choice the opportunity to present his case before an impartial court: Okoduwa v. The State (supra) at p. 733. and Fawehinmi v. N.B.A. (1989) 2 N.S.C.C. (Pt.11) 3 at page 32.
Furthermore, being the Complainant in the case, the Complainant is entitled to prosecute in person under section 21 1(1) of the Criminal Procedure Law of Lagos State. The subsection provides:-
Both the complainant and defendant shall be entitled to conduct their respective cases in person or by a legal practitioner.
Now, the question is whether section 256(2) of the Constitution deprives the Complainant the afore stated right to conduct and prosecute his case in person. For ease of reference, the provision of the subsection may be reiterated. It provides:
Any person who had held office as a judicial officer shall not on ceasing to be a judicial officer for any reason whatsoever thereafter appear or act as a legal practitioner before any court of law or tribunal in Nigeria.
There is no dispute that the Complainant had held office as a judicial officer and ceased to be so. The issue therefore is whether he appeared or acted as a legal practitioner in the case before the High Court. The proposition that a barrister litigant who conducted his case in person was acting as a legal practitioner was held to be misconceived in the Fawehinmi v. N.B.A. (supra) at page 20 where Obaseki, J.S.C. delivering the lead judgment stated:-
A barrister litigant is entitled to conduct his case personally or by counsel of his choice. This right is not guaranteed in civil cases under our Constitution but it is in criminal cases. See section 33(6)(C) of the Constitution of the Federal Republic of Nigeria 1979. I agree with Lord Westbury, L.C. when in the case of New Brunswick & Anor v. Conybeare 11. E.R. 907 he said the characters should not be mixed. A barrister litigant has a right to conduct his case in person as any other member of the public. it is not right or correct to say that a barrister represents himself. Such a representation does not exist in law although the legal training he has acquired can be utilised for his own benefit and for the benefit of others who retain his services when he has properly enroled and paid his fees as a legal practitioner. See:
Section 7(1) of the Legal Practitioners Act 1975;
Section 2(1) of the Legal Practitioners Act 1975;
Section 6(1) of the Legal Practitioners Act 1975.
The word ‘represent’ in the con of legal representation means to act or stand for or be an agent for another.
In his judgment at pages 32 to 33, Karibi- Whyte, 1.S.c. observed as follows:-
The question is whether he should as a litigant enjoy the privileges of his profession In New Brunswick and Canada Railway Co v. Conybeare (supra), Lord Westbury seems to suggest that the respondent must elect to argue in person or not. Mr. Conybeare, the respondent, had appeared as junior counsel to Mr. G. I Russel. Thus inferring that Conybeare should appear in person as respondent and not also as a junior counsel. The issue is both one of capacity and the privileges attaching to the capacity. Counsel appears at the Bar of the Court and will be entitled to address the court on behalf of his client. This right is exercised by counsel for the client and can also be exercised by the client himself. I do not appreciate the problems that may arise where the counsel who is a litigant will be required to give evidence in his own behalf and will be cross examined by the opponent. This is understandable since he is not merely counsel and ought to be able to give credible evidence in his action. It is not the case of counsel giving evidence in an action in which he is merely counsel- See Horn v. Richards (1963) NRNLR 67.
A litigant who is a legal practitioner conducts his case as a litigant, not as legal practitioner representing himself, the litigant.
The personality here is not split. He merely draws on the fountain of his legal training. It is not the question of a mixture of two characters.
I accept the Complainant’s submission that to ‘appear or act as a legal practitioner’ within the purview of section 256(2) of the Constitution, a legal practitioner must appear or act for and on behalf of a client. The Complainant, though a legal practitioner, did not appear or act for and on behalf of a client in the High Court. I hold that the subsection does not deprive the Complainant his right to conduct and prosecute his case in person. Learned counsel for the defendant did not show us any authority in support of his submission that it is trite law that legal practitioners have the monopoly of citations of authorities in a court of law. Surely, the submission is not correct. It is not only trite law but it is also not law at all. A litigant, whether a legal practitioner or a layman, who conducts his case in person has the right like any legal practitioner who appeared and acts for a client to cite authorities to advance his case. Obaseki and Karibi-Whyte JJ.S.C. correctly stated the law in the passages I have earlier set out in Fawehinmi v. NBA. (supra).
Accordingly, my answer to question No. 6(A) is: section 256(2) of the Constitution does not bar ajudicial officer who has ceased to be one from appearing before a court or tribunal to conduct in person a case in which he is a party or a complainant in a criminal case.
Undoubtedly, question No.6(B) was based on the supposition that the answer to question No.6(A) was in the positive. Since I have answered the latter question in the negative, question No.6(B) has become futile and a decision on it will be a mere academic exercise. This Court has persistently refused to decide
academic constitutional question: See Nkwocha v. Governor of Anambra State (1984) 6 S.C. 362 (1984) 1 SCNLR 634 and Governor of Kaduna State v. Dada (1986) 4 NWLR (Pt.38) 687. For this reason, I would refrain myself from deciding question No.6(B).
It remains to examine question No.6(C). Now, the provision of section 259)(3) of the Constitution is clear and unambiguous that a ‘question as to the interpretation or application’ of the Constitution is the foundation for making reference under the subsection. Any question of law, however substantial it is, which does not involve the interpretation or application of any of the provisions of the Constitution is outside the ambit of the subsection and is therefore not referrable.
The case of Otugor Gambioba v. Esezi II (1961) 2 SCNLR 237 was a reference by the High Court of Western Nigeria to the then Federal Supreme Court under section 108(2) of the 1960 Constitution where the Court held that the only issue referrable under that subsection was a question of law as to the interpretation of the Constitution .The Court refused to answer the question referred to it because it was premature. In Olawoyin v. Commissioner of Police (1961) 2 SCNLR 278 which was also a reference from the High Court of Northern Nigeria under the same subsection, the Court found that the question referred to it did not involve the interpretation of the 1960 Constitution but merely its application. It did not decide the question and remitted it to the High Court to proceed with the appeal before it.
It may be observed that although section 108(2) was in pari materia with our present section 259(2), the two are not identical. The former subsection provided:
(2) Where any question as to the interpretation of this Constitution or the Constitution of a Region arises in any proceedings in the High Court of a territory and the Court is of opinion that the question involves a substantial question of law the court may, and shall if any party to the proceedings so request, refer the question to the Federal Supreme Court.
The subsection did not include question as to the ‘application’ of the Constitution as the present section 259(3) has done. Nevertheless, except that the Court would have decided the question in Olawoyin’s case if it had come under section 259(3), the decision in the two references are still valid and relevant in reaching decision on the reference before us.
Certainly, question No.6(C) is not a question as to the interpretation or application of the 1979 Constitution. It is a question for the interpretation or application of section 340(2) of the Criminal Procedure Law of Lagos State and is therefore incompetent for reference under section 259(3). For this reason, I shall not decide the question and I remit it to the Court of Appeal for its determination.
To summarise, my answers to the questions are:-
- Question No.6(A) No;
- Question No.6(B) Not answered; and
- Question No.6(C) Not answered.
The case is remitted to the Court of Appeal to proceed with the appeal and cross-appeal before it.
BELGORE, J.S.C.: This reference by the Court of Appeal is by virtue of S. 259 (3) of the Constitution and the main question relates to S.256(2) of the Constitution of 1979 which provides:
S.256(2) Any person who has held office as a judicial officer shall not on ceasing to be a judicial officer for any reason whatsoever thereafter appear or act as a legal practitioner before any court of law or tribunal in Nigeria.
What are the operative words in this subsection To my mind the most important words are ‘appear’ and ‘act’. The two words operate in subsection as alternatives and qualify the word ‘legal practitioner’. Then who is a legal practitioner He is that person that has been called to the Bar to practice as a barrister and solicitor of the Supreme Court of Nigeria as provided in section 2(1), (2), (3) and (4) of Legal Practitioners Act.
The appellant in this matter under reference by the Court of Appeal was no doubt entitled at one time to practice as a legal practitioner in Nigeria as a result of which he was appointed a Judge of the High Court of Mid-Western State from which he retired. By virtue of S.256 (2) (supra), he cannot appear or act as legal practitioner again in Nigeria. This prohibition is to the effect that he can no longer practice in the Court or before any tribunal as a legal practitioner. But there is a further question whose resolution will give a final answer to the points now in reference. Is a person who ceased to be a judicial officer and has a Writ issued against him in his personal capacity precluded from answering the writ whether in writing or by appearance before a Court Or to put it in another way: Is a retired judicial officer held for a criminal offence and cannot afford the services of a counsel precluded from appearing before the Court to answer to the charge and offer his defence
My answer to the question is that a judicial officer ceasing to hold office who intends to exercise his constitutional right of defending himself and prosecute his case whether in civil or criminal matter, is not a legal practitioner before that Court or tribunal; he is a party simpliciter. He does not wear wig and robe, he does not sit in the well of the Court reserved for legal practitioners i.e. the bar, and to all intent and purposes remains a litigant simpliciter. So for the purpose of S. 256 (2) of the Constitution of 1979 the appellant in this case is a litigant, not a judicial officer who has ceased to hold office, in which case the answer to question 6B even assuming that the answer to question 6A has been in the positive, the suit is not vitiated or voided simply by reason of who filed it, it must be adjourned for the applicant to brief a counsel. The applicant must at least be heard and the matter should not be peremptorily struck out as done in the instant case. At any rate, since the answer to question 6A is in the negative, the attempt to answer question 6B fully is merely academic.
But the question as to S.340 (2) Criminal Procedure Law of Lagos State, the reference to my mind is not one of those allowed under the law. Only matters as to the interpretation of the Constitution can be so referred just as S.256(2) (supra) has been referred. Court of Appeal can have a proper look at the section and interpret it in accordance with the preponderance of any authority available. For the Supreme Court, I believe the reference is not only premature but also without jurisdiction and the answer to the reference on S.340(2) (supra) will better be left for determination by the Court of Appeal. Perhaps a more auspicious occasion will arise to revisit Akilu v. Fawehinmi (No.2) (1988) 2 NWLR (Pt.102) 122. The purport of reference is clear under S. 259(3) of the Constitution of 1979 quoted in the lead judgment of the Chief Justice of Nigeria.
I therefore answer as the Chief Justice of Nigeria has done in this reference that Question 6C is not within the jurisdiction of the Court of Appeal to refer to this Court; similarly this Court has no jurisdiction to look into the reference. The purport of S. 259(3) of the Constitution of 1979 is clear where it provides:
(3) Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Court of Appeal and the Court is of opinion that the question involves substantial question of law, the Court may, and shall if any party to the proceedings so requests, refer the question to the Supreme Court which shall give its decision upon the question and give such directions to the Court of Appeal as it deems appropriate.
I therefore hold this Court has no jurisdiction to entertain this particular reference much as the Court of Appeal cannot under the Constitution make such a reference.
KUTIGI, J.S.C. I have had the privilege of reading before now the judgment just delivered by my learned brother Hon. Chief Justice of Nigeria, Bello, C.J.N. The facts and the issues involved have been fully and beautifully set out. I entirely agree with the reasons and conclusions so lucidly stated therein. I do not wish to add anything.
Consequently. I would answer the three questions referred to the court as follows:-
Question 6(A) No
(B) Not answered
(C) Not answered
I will also remit the case to the Court of Appeal for the determination of the appeal and cross-appeal.
SC.218/1992
