BEST LAW REPORT SUBSCRIPTION PRICE!!

  • Commissioner of Police vs. Ali
  • 157
  • 2003-06-02
  • ₦ 200
  • Buy Now

Commissioner of Police vs. Ali

COMMISSIONER OF POLICE

V

NZE GEORGE ALI

THEOPHILUS NKEMJIKA

RAPHAEL NWOKOCHA

CLEMENT EBEREONWU

LAZARUS NWOROM

FELIX ONWUAMANAM

NZE SUNDAY ONYEJIEGWU

RUFUS UKWANDU

EMMANUEL UZOEGBU

BENJAMIN OHANWE

COURT OF APPEAL

( PORT HARCOURT DIVISION )

SYLVANUS ADIEWERE NSOFOR, JCA ( Presided and Read the Lead Judgment )

MICHAEL EYARUOMA AKPIROROH, JCA

ABOYI JOHN IKONGBEH, JCA

CA/PH/263/96

WEDNESDAY, 10TH JULY, 2002

APPEAL - Issues for determination - Formulation of more issues than ground of appeal - Impropriety of

APPEAL - Right of appeal - Appeal by the Commissioner of Police from the judgment of the Magistrate Court to the High Court - Whether as of right - Section 59 Magistrate Court Law, Cap. 52, Laws of Eastern Nigeria, 1963

APPEAL - Whether an inception of a new case

CRIMINAL LAW AND PROCEDURE - Prosecution by or on behalf of the state - Persons who may represent - Section 79(1) High Court Law,

Cap. 61, Laws of Eastern Nigeria, 1963

LEGAL PRACTITIONER - Barrister and Solicitor - Person entitled to practice as - Section 2(1) Legal Practitioners Act, Cap. 207, Laws of Federation, 1990

LEGAL PRACTITIONER - Public officers entitled to the privilege to practice as barrister and solicitors for the purpose of their office - Section 2(3)  Legal Practitioners Act, Cap. 207, Laws of the Federation, 1990

POLICE - Police officer - Power of to conduct in person all prosecutions before any court - Exception thereto - Section 23 Police Act

PUBLIC OFFICER - Attorney-General of Federation and Attorney-General of the State - Power of to institute and undertake criminal proceedings -  Sections 190 & 1991 of 1979 Constitution

PUBLIC OFFICER - Privilege to practice as barristers & solicitors for the purpose of their office - Public officers entitled to - Section 2(3) Legal Practitioners Act, Cap. 207, Laws of the Federation, 1990 WORDS AND PHRASES - ‘Subject to’ - Connotation and effect of

Issues:

1.            Whether the appeal filed at the High Court for Commissioner of Police by Mr. S. A. Mbara then a serving police officer and a lawyer without the consent or fiat of the Attorney-General of Imo State was incompetent.

2.            Whether Mr. E. Obia a serving police officer and a legal practitioner is competent to prosecute a criminal appeal in the High Court without the consent or fiat of the Attorney-General.

3.            Whether the order by the learned High Court Judge dismissing the appeal he held incompetent was proper.

Facts:

The respondents herein were the accused in charge No. MNU/75C/ 93  wherein they were charged with various offences in the five counts of the charge. On 21/7/93 when the case came up for hearing, the prosecuting police inspector applied for an adjournment on the ground that the case file was sent to the Director of Public Prosecutions (D.P.P.) on his request, and he (the D.P.P.) had not returned it. The learned trial senior Magistrate heard the counsel of the accused persons on the application for an adjournment on

21 /7/93. In the ruling after hearing the addresses, the court dismissed the charge under section 280 C.P.L for want of prosecution. The respondents were subsequently charged in charge No. MNU/205C/93 with the same offences as in the charge ‘dismissed’ on the 21/7/93. On their arraignment, the respondents raised a plea of autrefoi acquit which was upheld. The respondents were next charged on charge No. MNU/59C/94 with the offences as previously in charge No. MNU/205C/93 dismissed. When the case came up before the Magistrate Court on 7/12/94, the respondents were represented by counsel and Deputy Superintendent of Police S. A. Mbara was prosecuting. Consequent upon the preliminary objection raised by the counsel for the respondents to the jurisdiction of the court. The trial senior Magistrate in his ruling struck out the case. Against this ruling, the prosecutor had appealed to the Imo State High Court of Appeal. The ‘notice of appeal’ was signed and filed by S. A. Mbara, Esq. of counsel to the prosecution. On 22/6/94 when the appeal came up before the High Court of Appeal, counsel were asked by court to address it on the competence of the police lawyer who is still a serving police officer to prosecute the appeal in a criminal case. The court heard the addresses by the learned counsel for the accused, the appellant and the Honourable Attorney-General as an amicus curiae on the 8th of February, 1996. In a reserved ruling on 3rd of April, 1996 the learned Judge while dismissing the appeal held that the appeal filed by Mr. Mbara is incompetent and that Mr. Obia who is a serving police officer on salaried employment though enrolled as barrister and solicitor is not entitled under the Legal Practitioners Act, Cap. 207, Laws of the Federation of Nigeria to practice as barrister and solicitor cannot advocate for the prosecutor/appellant in the High Court of Appeal.

Dissatisfied with the decision, the Commissioner of Police appealed to the Court of Appeal. The Court of Appeal in consideration of the appeal considered section 2(3) of the Legal Practitioners Act, Cap. 207 Laws of the Federation, section 23 of the Police Act and section 160 of the 1979 Constitution which provides thus:

Section 2(3) of the Legal Practitioners Act:

“A person for the time being exercising the functions of any of the following offices that is to say -

(a)           the office of the Attorney-General, Solicitor-General or Director of Public Prosecution of the Federation or of a state.

(b)          ... shall be entitled to practise as a barrister and solicitor for the purposes of that office”.

Section 23 of the Police Act:-

“23. Subject to the provisions of sections 160 and 191 of the Constitution of the Federal Republic of Nigeria (which relate to the power of the Attorney-General of the Federation and of a state to institute and undertake, take over and continue or discontinue criminal proceedings against any person before any court of law in Nigeria), any police officer may conduct in person all prosecutions before any court whether or not the information or complaint is laid in his name”.

Section 160 of the 1979 Constitution:-

“(1)        The Attorney-General of the Federation 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 Act of the National Assembly;

(b)          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”.