OKEY EZEA v. THE STATE (2014)

OKEY EZEA v. THE STATE

(2014)LCN/7733(CA)

In The Court of Appeal of Nigeria

On Thursday, the 3rd day of July, 2014

CA/E/303/2010

RATIO

POLICE: THE POWER AND DUTIES OF THE POLICE; THE ROLE OF THE POLICE AND THE ATTORNEY-GENERAL IN THE CRIMINAL JUSTICE SYSTEM

The powers and duties of the Police are set out in section 4 of the Police Act, it reads:-
“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 of them by or under the authority of this or any other Act”.

The duty of the Police which calls for consideration here is the duty to detect crime which involves investigation of allegations of commission of crime. The crime investigative powers of the Police came under scrutiny in FAWEHINMI v. I.G.P. & 2 ORS (supra) (2002) 7 NWLR (Pt. 767) PAGE 606 at 670-671 (F-A). Where the Supreme Court summed up the investigative powers of the Police as follows:-
“The appellant is no doubt right in his argument that by virtue of the fact that section 214 (1) of the 1999 Constitution recognizes one Police Force for Nigeria and the said police are given a duty under section 4 of the Police Act (now in Cap. 359, Laws of the Federation of Nigeria, 1990) to prevent and detect crime, apprehend offenders, preserve law and order, protect life and property and enforce all laws and regulations with which they are directly charged, and that it is an important statutory duty which they owe to the generality of Nigerians and all other persons lawfully living within Nigeria. It follows that in their duty to detect crime, allegations of the crime committed by any person should normally be investigated by the Police. But I can see nothing in section 4 of the Police Act which denies them of any discretion whether or not to investigate any particular allegation, or when they decide to investigate to do so to its logical conclusion. The need to exercise discretion in such a matter may arise from a variety of reasons or circumstances, particularly having regard to the nature of the offence, the resources available, the time and trouble involved and the ultimate end-result. It may well be a question of balancing option as well as weighing what is really in the public interest”.

In ENANUGA & ORS v. SAMPSON (2012) LPELR-8487(CA) this Court PER AKEJU, J.C.A. following FAWEHINMI v. I.G.P. (supra) this court held as follows on the duties and powers of the police.
“By virtue of Section 4 of Police/act, Cap 19 Laws of the Federation of Nigeria, 2004 the Police has the duty and responsibility to prevent crime, to detect crime and preserve law and order among others. These duties are carried out within the exclusive discretion of the Police. Where a crime is reported it is within the discretionary powers of the Police to decide whether to investigate such a crime and the manner in which to conduct such investigation. See FAWEHINMI v. I.G.P. & ORS (2002) 7 NWLR (Pt. 767) 606”.

The combined effect of the Constitutional provisions, the statute and the case law is that in this Country, the institution conferred with the authority to investigate allegations of crime generally is the Police. In the performance of that duty, the Police have the exclusive discretion whether or not to carry out or proceed with the investigation of an alleged crime and how to proceed with an investigation. It is only in very obvious and exceptional circumstances that the court may interfere with their discretion such as when the manner of investigation adversely affects or breaches the fundamental rights of a citizen guaranteed under the Constitution.

In addition to the investigative powers of the Police, section 23 of the Police Act also confers on the Police the power to conduct prosecution of offenders before any Court in the land subject to constitutional limitations stated in that Section. Section 23 of the Police Act reads:
“Subject to the provisions of sections 160 and 191 of 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”.

On whether the Police has the power to undertake criminal prosecution, the Supreme Court held as follows in F.R.N. v. OSAHON (2006) 5 NWLR (Pt. 973) PAGE 361 at 423 (F-G).
“On turning to the provisions of section 23 of the Police Act, there is no doubt that the section confers powers on the police to conduct prosecutions before any Court, obviously including the Federal High Court, subject only to the powers of the Attorney-
General of the Federation and Attorney-General of any State in the Federation to take over and continue or to discontinue at any stage before judgment is delivered such criminal proceedings being conducted by the Police”.

It is clear from the above provisions of the Constitution, the Police Act and case law that the responsibility for Investigation of crime is exclusively with the Police while the power of the Police to institute criminal proceedings is subject to the power of the Attorney-General to take over any prosecution initiated by the Police at any stage of proceedings.

Section 211 of the Constitution confers the power to institute and undertake criminal proceedings in any court of law in Nigeria other than a court-martial in respect of any offence created under any law of the House of Assembly on the Attorney-General of the state, the Section reads:-
“1) The Attorney-General of a State 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 law of the House of Assembly;
(b)To 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.
2) The powers conferred upon the Attorney General of a state under subsection I of this section may be exercised by him in person or through officers of his department.
3) In exercising his powers under this section, the Attorney-General of a State shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process”.

The above provisions of our constitution have been interpreted by the appellate courts, See… AMAEFULE v. STATE 1988 NWLR (Pt. 75) page 156 at 171 (A-C) & 184 (B-C), Comptroller N.P.S. v. ADEKANYE (2002) 15 NWLR (Pt. 790) 318.
In STATE v. ILORI (1932) 2 SC 155 the Supreme Court held as follows:-
“The preeminent and incontestable position of the Attorney-General under the common law as the Chief Law Officer of the State, either generally as a Legal Adviser or specifically in all Courts proceedings to which the State is a party has long been recognized by the Courts. In regard to those powers and subject only to the ultimate control by public opinion and that of parliament, the Attorney-General has at common law been a master unto himself, and under no control whatever, judicial or otherwise vis-a-vis his powers of instituting or discontinuance of criminal proceedings”.
See also ADEBAYO v. THE STATE [2012] LPELR-9494 (CA) SADIKU v. STATE [2013] LPELR-20588 (SC), FRN v. ADEWUNMI (2007) 10 NWLR (Pt. 1042) PAGE 399 AT 404 – 405 (2).

The Attorney-General in law has the power and an absolute discretion to file any charge that in his opinion is supported by the proof of evidence before him. When the Attorney-General based on the proof of evidence decides to file a charge, the Police in law have no power or authority to stop the Attorney-General. The police have no control or power over the prosecutorial decision of the Attorney-General. The only check on his power at that stage is public interest, the interest of justice and the need to prevent abuse of legal process, since he is not only standing for the state but also for the society. The Attorney-General exercises that prosecutorial authority on behalf the state and the society. He has an exclusive and unfettered discretion to institute or commence criminal proceedings and when he has exercised that discretion, the Police have no power to interfere or intervene in any manner whatsoever with the criminal proceedings. per. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

Before Their Lordships

EMMANUEL AKOMAYE AGIMJustice of The Court of Appeal of Nigeria

SAIDU TANKO HUSAINIJustice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFFJustice of The Court of Appeal of Nigeria

Between

OKEY EZEAAppellant(s)

AND

THE STATERespondent(s)

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the leading Judgment): The appellant in this appeal was the gubernatorial candidate of the Labour Party in the governorship election held in Enugu State on 14th April, 2007. He lost in the election; Sullivan Chime was declared the winner of that election. The appellant filed a petition to challenge the result of the election as declared by the Independent National Electoral Commission. While the petition was pending, the appellant was suspected of having committed a crime. The Police investigated the allegation against the appellant, prepared the case file and sent it to the Director of Public Prosecutions by a letter dated 4th August 2007. An information was filed against the appellant on 13th August, 2007 in the High Court of Enugu State, Holden at Enugu containing eight count charge of forgery, uttering and assault contrary to and punishable under sections 252, 443 and 444 and of the Criminal Code, Cap 30, Volume 11, Laws of Enugu State of Nigeria, 2004. By a letter dated 16th August, 2007, the Police requested the Director of the Public Prosecutions to turn the case file on the ground that they wanted to carry out further investigation. Till date, the appellant has refused and/or failed to appear before the lower court to answer the charge. By an application dated 30th September, 2007 and filed on 2nd October, 2007 the appellant applied for the following orders:-
“1) An order of this honourable Court quashing the indictment contained in this case of all the counts charges (sic) against the accused/applicant.
2) An order discharging and/or acquitting the Accused/Applicant pursuant to the grant of prayer one (1) above.
3) And for such further or other orders as this honourable court may deem fit to make in the circumstance”.

GROUNDS OF THE APPLICATION
“1. The charges in this case amount to an abuse of the judicial process and are oppressive to the Accused/Applicant as the charges/Counts are inchoate, premature and still born.
2. The offences ex-facie the charge, arose from an election petition in the course of prosecuting an election petition before the governorship/Legislative Houses Election Tribunal in Enugu State and by virtue of Section 157 and 158 (2) of the Electoral Act 2006 (as amended) the Attorney-General of Enugu State or any of his Officers or any Legal Practitioner to whom he grants a fiat lacks the power to prosecute these offences.
3. The offences alleged against the accused/applicant are not disclosed by the statement of witnesses or the proof of evidence.
4. Take Further Notice that the accused/applicant shall rely on the proof of evidence and shall urge this Court to pry into them at the hearing of this application.”

In a considered ruling delivered by the Honourable Chief Judge, His Lordship dismissed the application, His Lordship held as follows:-
“it is clear that at common law under (sic) the Constitution of the Federal Republic of Nigeria 1999 and under the principle in the STATE v. ILORI (supra) this Court lacks the competence to quash an indictment or information commenced by the Attorney-General of the State against any person except those who enjoy constitutional immunity under Section 308 of the Constitution. It is also clear from the above analysis that the Attorney-General’s commencement of criminal prosecution cannot be subordinated to any instance or instances of the Police such as where the police claim that investigation has not been completed or that Police Report was inconclusive. Once the Attorney-General commences his prosecution, all these instances would merge in the prosecution for better or for worse. But they cannot be a ground for quashing the Attorney General’s indictment in limine or without a trial upon the merits”.

This appeal emanated from that ruling. The notice of appeal dated 7th October and filed on 25th October, 2010 contains 4 grounds of appeal which are:-

GROUNDS OF APPEAL:-
(1) ERROR IN LAW
The learned trial Chief Judge erred in law when he held
“I think section 211 of the Constitution of the Federal Republic of Nigeria 1999 is obviously determinative of this application. The section delimits the scope of the Powers of the Attorney-General of the State to undertake Criminal Proceedings”.

(2) ERROR IN LAW –
The learned Chief Judge erred in law when he had held
“From the above speech of the Supreme Court, it is clear that as respects the power of the Attorney-General in instituting or discontinuing criminal cases before our courts, there cannot be external or judicial control. They are therefore free from judicial control or invalidity at page 186 in STATE v. ILORI (SUPRA) the Supreme Court stated clearly “He (the Attorney-General) is not subject to any control in so far as the exercise of his power under 191 of the 1979 Constitution of is concerned -“.

(3) ERROR IN LAW
The learned trial Judge erred in law when he held
“No matter how differently I may feel there is no way this Court can dance away from the above position such as to quash in limine an indictment or prosecution commenced by the Attorney-General of the state. That would be creating a rebellious novel practice and I decline the urge and or invitation to do so”.

(4) ERROR IN LAW
The learned trial Chief Judge erred in law when he held
“It is also clear from the above analysis that the Attorney-General’s commencement of criminal proceedings cannot be subordinated to any instance or instances of the police such as where the police claim that investigation has not been completed or that police report was inconclusive. Once the Attorney-General Commences his prosecution, all these instances would merge in the prosecution for better or for worse. But they cannot be a ground for quashing the Attorney General’s indictment in limine or without a trial upon the merits”.

In his brief of argument filed on 18th November, 2010, the appellant’s counsel identified the sole issue for determination as follows:-
“Whether the powers vested in the Attorney-General of Enugu State by S 211 of the 1999 Constitution of Nigeria reaches up to and or includes his commencing criminal proceedings in court against the appellant even as police have not investigate the report made against him so as to determine if facts actually exist incriminating him in any criminal offence”.

Counsel argued that by the provisions of sections 211 (1) and (3) and 214(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended,) the responsibility to detect crimes is strictly that of the Police while the Attorney-General is to undertake, institute, take over, continue or discontinue criminal proceedings. He submitted that there is a real dichotomy between detection and investigation of crimes on one side and criminal prosecution on the other side, he referred to FAWEHINMI v. I. G. P. & 2 ORS [2002] 5 SC (Pt. 1) PAGE 63 AT 80 and 81. He argued further that only a Police investigation can prepare the ground for any criminal proceedings. It is when Police investigation has shown that a crime was committed and the suspect is incriminated in the offence that institution of criminal proceedings by the Attorney-General can start, he referred to HENRY UMEORA v. COMMISSIONER OF POLICE, (1977) 7 SC PAGE 12 AT 21. He submitted that in this case, the Attorney-General can invoke his constitutional powers under section 211 of the constitution if and only if the Police have concluded their investigation and a prima-facie case of Commission of a crime is established. Where the investigation fails to reveal such prima-facie case, the Attorney-General cannot commence any prosecution against the suspect, he referred to INAKOJU & 17 ORS v. ADELEKE & 3 ORS (2007) 1 SC (Pt. 1) PAGE 1 AT 137.

The Respondent’s counsel couched the issue for determination as follows:
“Whether the powers reposed in the State Attorney-General in the initiation and control of criminal trials is subject to Police Investigations on any such complaint.

He submitted that all the arguments and submissions of the appellant’s counsel are misconceived and the FAWEHINMI’S case relied on by the appellant’s Counsel is averse to his submissions. He argued that the Attorney-General is a creation of the Constitution with defined powers whereas the Nigeria Police operating under the Inspector General of Police as its head under section 214(2) of the same Constitution, is to be organized, administered and function in accordance with such provisions to be made by the National Assembly but is otherwise totally in other respects subject to the provisions of the constitution, recourse to the Police Act cannot therefore produce the kind of parallels being proposed with the Attorney-General. At best, the rights, powers and privileges under the Police Act cannot be anything more than complimentary and an aid to criminal proceedings rather than supplant or in any way condition the exercise of the Attorney-General’s powers under the constitution he referred to F.R.N. v. ADEWUNMI (2007) 10 NWLR (Pt. 1042) PAGE 299, JAMES TOR v. M. C. BELLO (2010) 4 WRN 106 AT 127-128, Section 152(1) ENUGU STATE CRIMINAL PROCEDURE LAW CAP. 31.

I have considered the grounds of appeal and the issues distilled for determination by counsel to both parties, I am of the view that the real issue for determination in this case is:-
“Whether the Police have the power to intervene or interfere in criminal proceedings initiated by the Attorney-General of a state.

This case has thrown up a very important question on the duties and powers of two important institutions in the criminal justice system in this Country. These institutions are the Nigeria Police and the Attorney-General. Both Institutions are creations of the constitution with specific powers, duties and functions. No doubt the Judiciary is the ultimate in the administration of justice system but the Judiciary is just an unbiased umpire who simply settles the dispute between the state and the citizen accused of committing an offence.
Section 214 of the 1999 Constitution of the Federal, Republic of Nigeria (as amended) gives life to the Nigeria Police, It reads:-
“(1) There shall be a police force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section no other Police Force shall be established for the Federation or any part thereof
(2) Subject to the provisions of this constitution
(a) The Nigeria Police Force shall be organized and administered in accordance with such provisions as may be prescribed by an act of the National Assembly.
(b) The members of the Nigeria Police shall have such powers and duties as may be conferred upon them by law;
(c) The National Assembly may make provision for branches of the Nigeria Police Force forming part of the Armed Forces of the Federation or for the protection of harbours, waterways, railways and air fields.

I state emphatically that the constitution and the statute have clearly and without any ambiguity separated the role of the police and the Attorney-General in the criminal justice system. The responsibility for investigation lies with the Police. The initiation, control and continuation of criminal proceedings in any court in this country is exclusively within the power of the Attorney-General of the Federation or of the state as the case may be since he can even take over any criminal prosecution instituted by any other authority in Nigeria including the prosecution initiated by the Police. I need to add that when the Attorney-General reviewed the evidence presented by the Police and decided to file information in this case, he was performing a quasi-judicial function which can never be subjected to the intervention of the Police. Since the Attorney-General has exercised his constitutional power and has initiated criminal proceedings against the appellant under the Criminal Code of Anambra State based on the proof of evidence before him, the request by the police for return of the case file for further investigation is ultra vires the power of the police. The filing of the information is a clear indication that the Attorney-General finds the evidence before him as contained in the proof of evidence sufficient to initiate criminal proceedings against the appellant. It is immaterial whether or not the police have concluded their investigation.

I have no doubt in my mind that the Police as the institution conferred with the power of investigation of crimes and the Attorney-General with the power to start or stop prosecution of offenders are central and important to the establishment and maintenance of a just, democratic and secured society especially a nascent democracy and developing country such as ours. This kind of a show of power and struggle for supremacy does not augur well for the yearnings and aspirations of a developing nation like ours. The fall out is loud and clear, a systemic manipulation and failure of criminal justice system. The prosecution in this case has been stalled for almost seven (7) years. This is a situation which sadly has become the practice rather than an exception in criminal prosecutions in this Country. I need not say more.
For the foregoing reasons, the sole issue for determination is resolved against the appellant. The appeal fails and it is hereby dismissed. The ruling of the lower court is hereby affirmed.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned Sister, MISITURA OMODERE BOLAJI-YUSUF, J.C.A. I am in complete agreement with the reasoning and conclusions therein.

SAIDU TANKO HUSAINI, J.C.A.: I read before now the lead Judgment just read by my learned brother, M. O. Bolaji-Yusuff, JCA and I entirely agree with the reasoning and conclusion therein. I have nothing more useful to add except to say that the appeal is devoid of merit and same be dismissed. The Ruling delivered at the lower Court by the Hon. Chief Judge on 20th day of January, 2007 is hereby affirmed.

Appearances

I. Aroh – Appellant with F. C. Okeke and C. Udeogarannya B. O. NjokuforFor Appellant

AND

J. H. C. Okolo, SANFor Respondent