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Fawehinmi v. I.G.P.

CHIEF GANI FAWEHINMI

V.

INSPECTOR-GENERAL OF POLICE

COMMISSIONER OF POLICE , LAGOS STATE

NIGERIA POLICE FORCE

COURT OF APPEAL

( LAGOS DIVISION )

G. ADESOLA OGUNTADE J.C.A. ( Presided and Read the Leading Judgment )

PIUS OLAYIWOLA ADEREMI, J.C.A

AMIRU SANUSI, J.C.A.

CA/L/499/99

MONDAY, 5TH JUNE,2000

CONSTITUTIONAL LAW - Interpretation of the Constitution - Clear and unambiguous provisions - How interpreted

CONSTITUTIONAL LAW - Judicial immunity of governor vis-a-vis police investigation of criminal allegation - Section 308, 1999 Constitution and Section 4 Police Act - Absence of immunity from police investigation

CONSTITUTIONAL LAW - Section 308 of 1999 Constitution  -“Otherwise”, “Proceedings” within the context of the section  - Meanings of

CONSTITUTIONAL LAW - Section 308 (1)(b) 1999 Constitution - Meanings and purport of

CRIMINAL LAW AND PROCEDURE - Criminal Proceedings - When and how it begins

CRIMINAL LAW AND PROCEDURE - Police investigation - Criminal prosecution -  Distinction between

EVIDENCE - Photocopies of public documents annexed to affidavit - Whether inadmissible

EVIDENCE - Documents - Requirement to produce from proper custody - Effect on admissibility of such documents - - Torti vs. Ukpabi (1984) 1 SCNLR 214   revisited

EVIDENCE - Public documents annexed to affidavit - Need to comply with section 97 , Evidence  Act

EVIDENCE - Relevancy and admissibility - Admissibility as test of relevancy Section 97, Evidence Act

EVIDENCE - Relevancy and Admissibility - Test of - How applied regarding the use of public documents in affidavit evidence - Section 97 Evidence Act

JUDICIAL OFFICERS - Judges - Task in interpreting provisions of the Constitution

 STATUTE - Police Act, Cap. 359 Laws of the Federation - Duty of the Police under section 4 of Police Act.

LOCUS  STANDI - Criminal complaints - Right of any person to make and compel police to investigate

MANDAMUS - Order of - When it lies - Reasons for refusal

POLICE - Police investigation - Meaning  and scope of

PRACTICE AND PROCEDURE - Mandamus - When it may lie

PUBLIC  OFFICERS - Need to be above board

WORDS AND PHRASES - “Otherwise” - Meaning of in the context of section 308(1)(b)  of 1999 Constitution

WORDS AND PHRASES - “Proceedings” - Meaning of in the context of section 308(1)(b)  of the 1999 Constitution

WORDS AND PHRASES - ‘Arraignment’ - Connotation of

Issues

  1. Whether the Governor of a State in Nigeria or indeed any other public officer enjoys immunity under the Constitution of the Federal Republic of Nigeria 1999 from investigation into any criminal allegation.
  2. Whether investigation by the police into criminal allegations amounts to legal proceedings such as envisaged under section 308(1)(b) of the Constitution of the Federal Republic of Nigeria 1999.
  3. Whether exhibits GF1, GF2 and GF3, being photocopies of public documents not certified as true copies in compliance with sections 109(1)(b) and 116 of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990, are admissible.
  4. Whether it is premature to object to the admissibility of Exhibits GF1, GF2 and GF3 in an application for an order of mandamus, the applicant having argued his application and the use of which the exhibited documents will be made is known.
  5. Whether the verifying affidavit in support of the motion, particularly paragraphs 1 and 3, disclosed any special interest of the appellant to confer Locus Standi on him to invoke the judicial power of the court.

Facts:

The  applicant/appellant commenced this suit at the Federal High Court, Lagos by way of an originating summons seeking two declaratory orders and an order of mandamus compelling the respondents to investigate the applicant’s complaint of false statement on oath and false declarations made under oath by Mr. Bola Ahmed Tinubu (who became Governor of Lagos State on 29th May, 1999), and to make the outcome of such investigation public. In reaction to the summons, the Defendants/Respondents filed a Notice of Preliminary Objection, challenging the court’s jurisdiction to hear the application on the grounds that the applicant lacks the locus standi to sue for the reliefs and that by virtue of section 308 of the 1999  Constitution, the Governor is immune to prosecution and so granting the applicant’s reliefs would breach the constitution. Arguments on the originating summons and the preliminary objection were taken by the trial judge after which he upheld the objection and consequently dismissed the originating summons. Dissatisfied with the ruling, the appellant filed this appeal against it while the Defendants/respondents cross-appealed .

It is pertinent to reproduce relevant sections of the laws considered in this case.

Section 4 of the Police Act Cap. 359, 1990 Laws of the Federation provides: “4 The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with  which they are directly charged and shall perform such  military duties within or without Nigeria as may be required by them, or under the authority of this or any other Act”

Section 59(1) of the Criminal Procedure Law of Lagos State Cap 33 Laws of Lagos State 1994 provides:

“59(1) Any person may make a complaint against any other person alleged to have committed or to be committing an offence, unless it appears from the enactment on which the complaint is founded that any complaint for such offence shall be made only by a particular person or class of persons, in  which case only the particular person or a person of the particular class may make such a complaint.” And Section 308 of the 1999 Constitution provides:

308(1)  Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this Section -

  1. no civil or criminal proceedings shall be instituted or continued

against a person to whom this section applies during his period of office;

  1. a person to whom this section applies shall not be arrested  or imprisoned during that period either in pursuance of the process of any court or otherwise; and
  2. no process of any court requiring or compelling the appearance of a person to whom this section applies shall be applied for or issued:

Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this Section applies, no account shall be taken of his period of office.

  1. The provisions of subsection (1 ) of this section shall not apply to civil proceedings against  a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.
  2. This Section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to “period of office” is a reference to the period during which the person holding such office is required to perform the functions of the office.”