Samuel Chike Onwuka V. The State (1970)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

The appellant was tried and convicted by Adefarasin, J. at the Lagos Assizes and sentenced to a total term of seven years I.H.L. The information on which he was charged contains two counts as follows:-
“Statement of Offence: 1st Count
Fraudulent false accounting, contrary to section 438 (b) of the Criminal Code.

Particular of Offence
Samuel Chike Onwuka (M) between January 1965 and February 1967 at Lagos, in the Lagos Judicial Division, being a clerk employed by Sterling Drugs International, Lagos with intent to defraud made false entries in a book of accounts belonging to your employer to wit : the wages book purporting to show that between the said dates the total wages paid to the company employees was 24,021,6s,8p (twenty four thousand and twenty-one pounds, six shillings and eight pence) whereas in truth and in fact it was 19,852,16,8p (nineteen thousand, eight hundred and fifty-two pounds, sixteen shillings and eight pence).

Statement of Offence: 2nd Count Stealing, contrary to section 390 (6) of the Criminal Code.
Particulars of Offence
Samuel Chike Onwuka between January 1965 and February 1967 at Lagos, in the Lagos Judicial Division, being a clerk to the Sterling Drugs International, Lagos stole the sum of 4,169,10s (four thousand, one hundred and sixty-nine pounds and ten shillings) property of your employer the said Sterling Drugs International, Lagos.”

Manifestly, the offences of which he was charged are stated to have been committed “between January 1965 and February 1967 at Lagos”. Seven witnesses testified for the prosecution and the appellant himself gave evidence before the learned trial judge. Counsel for the appellant as well as counsel for the prosecution also addressed the court and it is pertinent to state that at no stage of the proceedings in the High Court, including the delivery of judgement, was the question of lack of competence by the Director of Public Prosecutions of Lagos State to file the Information adumbrated.

The appellant has now appealed to this court and the constitutional ground of appeal argued on his behalf is:-
“( 1) The trial and conviction of the appellant was illegal and ought to be quashed because the offences alleged in the information being offences against Federal Legislation (before it took effect as part of the laws of Lagos State) it was not competent for the Director of Public Prosecutions of Lagos State to file the information.”
The ground of appeal challenges the competence of the Director of Public Prosecutions of the Lagos State to file the Information on which the appellant was tried and convicted. Learned counsel for the appellant has submitted to us that the offences for which the appellant was tried were offences against Federal legislation stated to have been committed during a period when Lagos State had not been created and the Criminal Code had not taken effect as a State legislation.

Learned counsel for the appellant referred to section 104 of the Nigerian Constitution and to sections which are in pari materia with it in the Regional Constitutions and submitted that while the Federal Attorney-General (or the Federal Director of Public Prosecutions by virtue of section 104 (3) is competent to institute such prosecution in respect of offences created under any Act of Parliament or decree or any law falling within section 104 (8) (b), a State Attorney-General (or a State D.P.P. as the case may be) can only institute criminal proceedings in respect of offences under the State law. In support of this contention counsel for the appellant referred us to the definition of “Law” in section 18 (1) of the Interpretation Act, 1964. That section provides as follows:-
“Law” means any law enacted or having effect as if enacted by the legislature of a Region and includes any instrument having the force of law which is made under a Law.”

For his part the learned counsel for the Director of Public Prosecutions, Lagos State, submitted that he was competent to file the present Information and institute criminal proceedings against the present appellant as he did by virtue of powers conferred on him by the provisions of section 8 of the Lagos State (Interim Provisions) Decree, 1968, (No. 13 of 1968). The relevant provisions of section 8 are as follows::-
“( 1) There shall be a Director of Public Prosecutions for Lagos State, whose office shall be an office in the public service of Lagos State and, without prejudice to the provisions of this Decree relating to the Public Service Commission of the state, an office in the Ministry of Justice of that state.
(2) Subject to the provisions of any enactment conferring extended powers as to prosecutions on the Attorney-General of the Federation, the Attorney-General of Lagos State (or in the event of his absence, inability for any reason to act, or non-appointment, the Legal Secretary thereof) 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 the state in respect of any offence created by or under any law;
(b) To take over and continue any such criminal proceedings that have been instituted by any other person or authority; and
(c) To discontinue at any stage before judgement is delivered in any such criminal proceedings instituted or undertaken by himself or any other person or authority.
(3) The powers of the Attorney-General of Lagos State or that of the Legal Secretary thereof, as the case may be, under subsection (2) of this section may be exercised by him in person and through the Director of Public Prosecutions of the state acting under and in accordance with the general or specific instructions of the Attorney-General or of the Legal Secretary, as the case may be, and through the officers of the Ministry of Justice of that state; acting under and in accordance with such instruction.

The learned Principal State Counsel further submitted that on the plain meaning of section 8 (2) (a) the Director of Public Prosecutions was competent to institute criminal proceedings in respect of any offence created by or under “any law” in force in Lagos.

There can be no doubt that the issue of competence to file an Information and institute criminal proceedings is fundamental and when such competence is not established this Court will hold that the trial is a nullity. See Q. v. Owoh [1962] 1 All N.L.R. 659. There is no argument that the Criminal Code under which the appellant was charged is a law in force in Lagos State. Section 8 (1) of the Lagos State {Interim Provisions} Decree, 1968 creates the office of the Director of Public Prosecutions for the State. Section 8 (2) invests the Attorney-General of the State in the circumstances described in that subsection with powers, inter alia, to institute and undertake criminal proceedings and section 8 (3) names the Director of Public Prosecutions of the State as one of the functionaries through whom the Attorney-General of the State may exercise the powers contained in section 8 (2). Subsections (2) and (3) of section 8 “refer as well to the legal Secretary of the State but in view of the fact that that official is referred to in this action as a substitute for the Attorney-General it is not necessary to refer to him specifically in this judgement.

Learned counsel for the appellant has referred us to a number of sections in the Nigerian Constitution dealing with the exercise of the prerogative of mercy (Le. section 101), prosecutions for offences under “federal” enactments (Le. section 104 (8) and the like and has suggested likely repercussions that might result if the Attorney-General of Lagos State or the Director of Public Prosecutions of the State were allowed unfettered competence in the institution of criminal proceedings in respect of “any law” when in respect of those proceedings other acts such as the exercise of the prerogative of mercy would occur. In particular, learned counsel for the appellant has submitted that as at the date of the present information:-
(i) by virtue of section 104 of the Federal Constitution (1963) only the Attorney-General of the Federation by himself or acting through the Director of Public Prosecutions of the Federation had the necessary competence to file an information and institute criminal proceedings in respect of any offence under any Act of Parliament, decree or other legislation taking effect as federal legislation;
(ii) the Attorney-General of Lagos State (by himself or acting through the Director of Public Prosecution of the State) is only competent to file an information and institute criminal proceedings in respect of any offence under a State law or any legislation which has effect as a State law; and
(iii) in the absence of any special statutory provision neither the Attorney-General of Lagos State nor the Director of Public Prosecutions of the State has the necessary competence to file an information and institute criminal proceedings in respect of any offence committed against the Criminal Code at a time when that Code was in force in Lagos as an Act of Parliament of Federal law.
On the date of the information in this case, i.e. the 20th May, 1969, the Criminal Code was in force in Lagos as a State law and indeed has been so since the creation of Lagos State (see sections 1 (5) and 7 (3) of the States (Creation and Transitional Provisions) Decree, 1967 (No. 14 of 1967).

Before then however, the Criminal Code was in Lagos in force as a “federal” legislation. We point out that by virtue of section 104 (2) (a) of the Constitution of Nigeria (as amended by the Constitution (Suspension and Modification) Decree No. 8 of 1967 (Schedule 2) the Attorney General of the Federation is vested with competence to institute criminal proceedings “in respect of any offence created by or under any Act of Parliament or “Decree”. It is therefore impossible to resist the argument that an offence committed before the creation of Lagos State against the Criminal Code was an offence against a “federal” legislation with which only the Attorney-General of the Federation was then competent to deal. It does not follow however in our view that this position remains the same despite the enactment of the Lagos State (Interim Provisions) Decree, 1968 (No. 13 of 1968).
The powers of the Attorney-General of the Federation to institute criminal proceedings are set out as stated before in section 104 (2) (a) of the Federal Constitution and were originally expressed to be exercisable in respect of any offence created by or under any Act of Parliament as well as law falling within section 104 (8) (b) of the Federal Constitution.

By the provisions of the Constitution (Suspension and Modification No.2) Decree, 1966 (No. 14 of 1966), however, section 104 (2) (a) of the Federal Constitution was amended so as to give the Attorney-General of the Federation “extended” competence to institute criminal proceedings “in respect of any offence created by any law in force in Nigeria or any part thereof’.

By the Constitution (Suspension and Modification No.9) Decree, 1966 (No. 59 of 1966), Decree No. 14 of 1966 was repealed which meant in effect that the extended powers of the Attorney-General were removed and the position as under the Federal Constitution section 104 (2) and 104 (8) (b) reverted. Now, since May 1967 and with the creation of Lagos State it is manifest that occasion would arise for the institution of criminal proceedings for criminal breaches of State laws including the Criminal Code and it is necessary that the Attorney-General of the State by himself or acting through the Director of Public Prosecutions should be vested with competence to do so.

Section 8 (2) (a) of Decree No. 13 of 1968 in our view does this. We have already referred to the  of section 8 (2). Learned counsel for the appellant however argued that section 8 (2) (a) should not be construed as envisaging powers in respect of offences “created by or under any law” whatsoever operative in the State since:-
(i) The powers conferred by section 8 (2) on the Attorney-General of Lagos State are, according to the section, “subject to the provisions of any enactment conferring extended powers as to prosecutions on the Attorney-General of the Federation”; and
(ii) To hold in that way would make section 8 (2) (a) of Decree No. 13 of 1968 conflict with the exclusive competence vested in the Attorney General of the Federation by the provisions of section 104 (5) of the Nigerian Constitution.
We do not accept these submissions and indeed learned counsel for the appellant conceded that section 104 (5) of the Federal Constitution gave exclusive competence to the Attorney-General of the Federation only in respect of section 104 (2) (b) (c) and not under section 104 (2) (a). Section 8 (2) of the Lagos State (Interim Provisions) Decree is to be read subject not to the ordinary powers of the Attorney-General of the Federation as postulated by section 104 (2) of the Federal Constitution but to “any enactment conferring extended powers as to prosecution on the Attorney-General of the Federation”. Thus, although the extended powers of the Attorney General of the Federation (whatever they be) are not affected by section 8 (2) (a) of Decree No. 13 of 1968, yet the ordinary powers are affected with the result that the powers created and vested in the Attorney-General of Lagos State by that section are exercisable pari passu with the ordinary powers exercisable by the Attorney-General of the Federation.

The word “Law” as defined in section 18 (1) of the Interpretation Act, 1964, is spelt therein with a capital “L” in contrast to the majority of other defined expressions there which do not use capitals. This may well be because specific legislation was contemplated as being embraced in that definition. Section 8 (2) of the Lagos State (Interim Provisions) Decree, 1968 (No. 13 of 1968) does not spell “law” with a capital “L” and so the definition from the Interpretation Act, 1964 would not apply, doubtless because law generally, as opposed to a specific legislation, was contemplated here. Section 8 (2) (a) of Decree No. 13 of 1968 vests the Attorney General of Lagos State with competence to institute criminal proceedings therefore in respect of any offence against any law subject however to any extended powers conferred on the Attorney-General of the Federation by the provisions of any enactment in that respect. There is only this qualification to the competence of the Attorney-General of Lagos State.

He is empowered to institute such criminal proceedings “in any court of law in the State”. The Criminal Code operates in Lagos State now as a State law hence the Attorney-General of Lagos State is competent to institute such proceedings in respect of offences against the Criminal Code as such and by virtue of section 8 (3) of Decree No. 13 of 1968, the Director of Public Prosecutions of the State is competent in the circumstances to institute such criminal proceedings including the present one.

Learned counsel for the appellant has referred to the other provisions of section 8 (2), i.e. the taking over or discontinuation of criminal proceedings already instituted and stressed the likely effects of deciding that the Lagos State Attorney-General could take over or discontinue any criminal proceedings instituted by any other person or authority, including the Federal Attorney-General. For the purpose of institution of criminal proceedings under section 8 (2) (a), however, it is not necessary in our view to embark upon any discussions as to the powers to take over or discontinue existing criminal proceedings. The implications of those powers may depend on a number of other considerations which are not now before us and have not been the subject of full argument. In this connection as well one must take into consideration the specific provision of section 104 (5) of the Federal Constitution, which so far as it is relevant in this con, reads:-
“104 (5) The power 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:”

The subsection clearly and only refers to the powers to take over and/or discontinue existing criminal proceedings and not the power to institute such proceedings. The point raised in this appeal, as indeed the ground of appeal before us, is concerned only with the institution of criminal proceedings and this judgement is confined to that point.

The constitutional ground of appeal argued on behalf of the appellant therefore fails and we rule that the Attorney-General of Lagos State is competent to institute the present proceedings. We shall fix a date for the hearing of the other grounds of appeal filed on behalf of the appellant.

SC.146/1969