Saka Ibrahim & Anor V. The State (1986)
LawGlobal-Hub Lead Judgment Report
ESO, J.S.C.
Only few facts are relevant to this case and they are as follows – On March, 1980, the Attorney-General of Ondo State gave an authorization under s.191(2) of the Constitution of the Federal Republic, hereinafter referred to as the Constitution. The direction thus given reads-
“OD.S.L.N.4 of 1980
The Constitution of the Federal Republic of
Nigeria, 1979 Public Prosecutions
AUTHORISATION UNDER SECTION 191(2) of
THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1979
DATE OF COMMENCEMENT: 11TH MARCH, 1980
In exercise of the powers conferred upon the Attorney-General of the State by subsection (2) of section 191 of the Constitution of the Federal Republic of Nigeria 1979 as set out in subsections (1) and (3) of the said section, I hereby authorise the Director of Public Prosecutions of the State, the Deputy Director of Public Prosecutions and all grades of State Counsel in the Department of Public Prosecutions (acting under the immediate direction and control of the Director of Public Prosecutions) to exercise on my behalf and acting under and in accordance with such general or special directions, in writing as I may from time to time issue to the said Director of Public Prosecutions, all and sundry the powers conferred upon me as Attorney-General of the State by subsections (1) and (3) of the said section.
DATED at Akure this 11th day of March, 1980.
J.K. ADERIBIGBE
ATTORNEY GENERAL
On 14th December 1981 an information filed and signed by one Joe Ibitoye, Senior State Counsel in the Ministry of Justice Ondo State, charged the appellant with various offences of arson, unlawful damage to property, stealing and forgery. The particulars of the offences are not material to this case. What is of importance is that the information was signed by the Senior State Counsel “for the Director of ‘public Prosecutions” with no reference whatever to the Attorney-General.
The appellant was arraigned before, tried and convicted by the High Court, Ado-Ekiti, Adeloye J., as he then was. The learned trial Judge sentenced him to various terms of imprisonment. The appellant appealed to the Court of Appeal (Benin Division) and the Court after considering the substance of the ease dismissed the appeal. It is pertinent to state here that no constitutional point was raised before the Court of Appeal. Only the merit of the case was attacked before that Court.
On further appeal to this Court, learned counsel for the appellant, Chief Afe Babalola raised for the first time a constitutional point in a ground of appeal which reads –
“The learned appellate judges erred in law by affirming the conviction of the appellants when the information charging the appellants before the court was preferred without authority whereof the charge, trial and conviction are null and void.”
Chief Afe Babalola followed this up with filing additional grounds of appeal one of which is on the same constitutional topic and that additional ground of appeal reads –
‘The learned appellate judges erred in law by affirming the conviction of the appellants on counts 1 and 3 when the information charging the appellants with the offences for which they were tried was not prepared by a person duly authorised by law.”
In a detailed brief, learned counsel argued that the extent of delegation, permissible under section 191 (2) of the Constitution is no more than one to relieve the Attorney-General of the burden of personally preparing and signing an information. He made references to the position under the pre-1963 Constitution that is, the Constitution of the Federation of Nigeria 1960 and the Constitution of Western Nigeria which provided in Western Nigeria, the creation of the office of Director of Public Prosecutions (see section 67 of the Constitution of Western Nigeria 1960) and made it independent of the Attorney-General whose office was of a political nature. Then he submitted that under the 1979 Constitution, the only office holder recognised with regard to Criminal Prosecutions by virtue of s.191 of the Constitution is the Attorney-General. The Director of Public Prosecution, just like any other officer in the Attorney-General’s Department is constitutionally a non-entity. He then argued that it would be easy to accept the notion that the scope and content of section 191(2) of the Constitution do not extend beyond authorizing an officer of the Attorney-General’s Chambers to prepare and sign an information to be laid before the Court in the name of the Attorney-General.
In his oral submissions before this Court in pursuance of his adoption of his brief, learned counsel argued that there were four vital issues in this case for this Court’s determination:
(i) Whether the Attorney-General could delegate all his powers under s. 191(1) and (3) of the Constitution;
(ii) If the answer is in the negative how much of his powers could he delegate;
(iii) Whether a delegatee of such power could initiate prosecution in his own name; and
(iv) Whether the information filed by a State Counsel on behalf of the Director of Public Prosecutions Ondo State was in conformity with s.191 of the Constitution.
Mr. Olowo, the Deputy Director of Public Prosecutions, Ondo State who represented the State gave a short reply. He said that the Attorney General can delegate all his powers under s.191 of the Constitution and there is no limitation to such delegation.
I think the issues that have arisen in this appeal are very short indeed and are not being considered in this Court for the first time. In Attorney-General Kaduna v. Hassan (1985) 2 N.W.L.R. Part 8 483, this court, as per Irikefe J.S.C., as he then was, traced the history of the powers of the Attorney-General from the pre-1960 Constitution to the 1979 Constitution. Reference was made to s. 104 of the 1963 Constitution. I will like to set out some provisions of the section material to this case, herein for comparison with s.191 of the 1979 Constitution to bring out succinctly the powers of the Attorney-General under the 1979 Constitution to delegate his powers.
S.104 of the 1963 Constitution provides-
“s.104(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 and without prejudice to the provisions of this Constitution relating to the Public Service Commission, an office in the Federal Ministry of justice.
(2) The Attorney-General 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 law in force in Nigeria or any part thereof;
(b) to take over and continue any such criminal proceedings that may have been instituted by any other person or authority;
(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 Attorney-General of the Federation under subsection (2) of this section may be exercised by the Attorney General in person and through the Director of Public Prosecutions of the Federation, acting under and in accordance with the general and special instructions of the Attorney-General, and through other officers of the department mentioned in subsection
(1) of this section, acting under and in accordance with such instructions.
(5) The powers conferred upon the Attorney-General of the Federation by paragraphs (b) and (c) of subsection (2) of this section shall be vested in him to the exclusion of any other person or authority” (Italics mine)
From these provisions, it is patent that the powers of the Attorney-General to take over and continue criminal prosecutions which have been instituted by any other person, and also the power of discontinuance of any prosecution instituted either by himself or any other person or authority are not matters of delegation by him as subsection (5) of section 104 of the 1963 Constitution specifically vests the powers in him to the exclusion of any other person (see also p.501 of (1985) 2 N.W.L.R. Part 8)
One should now compare these provisions with the provisions of s. 191 of the 1979 constitution. While paragraph (b) of subsection (1) of the section gives powers to the Attorney-General to take over and continue any criminal proceedings that may have been instituted by any other authority or person as provided in paragraph (b) of subsection (2) of s.104 of the 1963 Constitution there is no such limitation to delegate in section 191 of the 1979 Constitution as provided in subsection (5) of s.104 of the 1963 Constitution.
It is plain to me that the Attorney-General, who, as this Court had said in the State v. S. O. Ilori 1983/S.C.N.L.R. 94 to be law and master unto himself and against whom the only sanction where he abuses his almost unfettered discretion is the reaction of his appointor or adverse public opinion which may force him to resign, has unfettered power to delegate his powers to
(a) institute and undertake criminal proceedings;
(b) take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
(c) discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
And so the delegation contained in ODSLN 4 of 1980 made by J.K. Aderibigbe Attorney-General of Ondo State is valid.
It is true that one may criticize the exercise of delegation as contained in the authorisation of the Attorney-General for it is rather too wide – being extended even to “all grades of State Counsel in the Department” and would leave that Attorney-General with practically nothing to do personally under the all important provision of s.191 of the Constitution. But the power is in him and if the appointor is satisfied with such apparent lazy Attorney-General, it is only unfortunate, but legally and constitutionally valid.
A State Counsel who had only just been appointed and whose only experience is the National Youth Corps Service qualifies under this strange but generous delegation. Again one may wonder what the sanction would be against such Attorney-General entrusting such important constitutional function to such an inexperienced officer who would execute such weighty functions practically without supervision.
For though the direction contains such recitation as “acting under and in accordance with such general or special directions, in writing” as the Attorney-General, “may from time to time issue to the said Director of Public Prosecutions” it is known from the learned counsel for the Respondent in this case, who comes from the Department of the Attorney-General, that throughout the term of the Attorney-General, and that is to the end of the second Republic, and indeed till the time of the hearing of this appeal, which term has spanned even through the life of a Military Government, subsequent to the second Republic, no such direction whether general or special has been given.
The sanction could only be as this Court has said in the State v. Ilori Supra, the reaction of his appointor or adverse public opinion which may force him to resign.
Incidentally, the particular Attorney-General is no longer in office and I do hope the present Attorney-General of the State will keep a sharper eye on s.191 of the Constitution.
This constitutional issue, which is the only paramount ground raised by the appellant having failed, I think, is sufficient to dispose of the appeal entirely, more especially as it is the only issue raised in the four-pronged submission of learned counsel, Chief Afe Babalola, in this court and for which the constitutional court was empannelled.
The other grounds which Chief Afe Babalola raised in the Court of Appeal and which failed in that Court and also which learned counsel has not touched in his argument before us, remained abandoned. The appeal is accordingly dismissed.
The judgment and order of the High Court Ado-Ekiti (Adeloye J. as he then was) which had been affirmed by the Court of Appeal is, hereby further affirmed.
SC.206/1984
