CHIEF GANI FAWEHINMI VS COL HALILU AKILU & ANOR.
(1987) LCN/2012(SC)
In the Supreme Court of Nigeria
Thursday, December 17, 1987
Case Number:SC. 43/1987
JUSTICES:
OBASEKI
NNAMANI
UWAIS
BELLO
ESO
WALI
CRAIG
APPELLANTS
CHIEF GANI FAWEHINMI
RESPONDENTS
COL HALILU AKILULT. COL A.K. TOGUNIN RE: ODUNEYE, D.P.P.
RATIO
WHETHER OR NOT A SPECIAL APPLICATION AND REFUSAL ARE CONDITIONS PRECEDENT TO A MANDAMUS TO COMPEL PERFORMANCE OF A DUTY
This is evident from a close examination of the provisions of section 342(a) of the Criminal Procedure Law. That paragraph reads: ‘The registrar shall receive an information from a private person If it has endorsed thereon a certificate by a law officer to the effect that he has seen such information and declines to prosecute at the public instance the offence therein set forth.” The duty that the appellant complains of the respondent has not carried out is that “having seen the information and having failed to decide to prosecute at the public instance the offence therein set forth, the Director of Public Prosecutions refused to endorse thereon “that he has seen the information and declines to prosecute at the public instance the offence therein set forth.” Where a law officer expresses that he is unable to come to a decision to prosecute, it cannot be interpreted that he has come to a decision to prosecute. It is more consonant with reason to hold that at that point of time, he has declined to prosecute. The reason for taking such a stand is not relevant at this stage and need not be enquired into for the purpose of the application for leave. What is relevant is the failure or refusal (1) to take a decision to prosecute or not to prosecute and (2) to endorse on the information that he declines to prosecute at public instance. PER OBASEKI, J.S.C.
RULE THAT GUIDES AN APPLICANT TO BE ENTITLED TO AN ORDER OF MANDAMUS
For the general rule is that before the applicant is entitled to the order, he must have addressed a direct distinct specific demand or request to the respondent to do a duty imposed upon him by law and the respondent must have unequivocally, either expressly or by necessary implication manifested his refusal to comply ……. PER OBASEKI, J.S.C.
WHAT IS THE PROVISION OF SECTION 341 OF THE CRIMINAL PROCEDURE LAW IN RELATION TO OTHER PUBLIC OFFICERS SIGNING AN INFORMATION
There is provision for other public officer or person to sign information. It is subsection(2) of section 341 of the Criminal Procedure Law which reads: “Where the State Commissioner shall for reasons of public convenience think fit, an information may be signed by any other public officer or person whom the State Commissioner may delegate.” PER OBASEKI, J.S.C.
THE CONDITIONS UNDER WHICH A PRIVATE PERSON CAN SIGN AN INFORMATION
The conditions under which a private person can sign an information are set out in section 342 of the Criminal Procedure Law which reads: ‘The Registrar shall receive an information from a private person if – (a) it has endorsed thereon a certificate by a law officer that he has seen such information and declines to prosecute at the public instance the offence therein set forth, and (b) such private person has entered into a recognizance in the sum of one hundred Naira, together with one surety to be approved by the Registrar in the like sum to prosecute the said information to conclusion at the times as which the accused shall be required to appear and to pay such costs as may be ordered by the court or in lieu of entering into such recognizance shall have deposited one hundred Naira in court to abide the same conditions.” PER OBASEKI, J.S.C.
THE FUNDAMENTAL PRINCIPLE THAT AN APPLICANT SEEKING LEAVE TO APPLY FOR AN ORDER OF MANDAMUS MUST HAVE LOCUS STANDI
It is fundamental that an applicant for leave to apply for an order of mandamus must have locus standi to make the application before leave can be granted by the court. Indeed, the party making any claim and bringing any application before the court must have locus standi. See Senator Adesanya v. President of Nigeria (supra) Irene Thomas v. Olufosoye (supra) Amusa Momoh & Anor. v. Jimoh Olotu (1970) 1 All NLR. 117. If the plaintiff has no locus standi, the court has no jurisdiction to entertain the matter and it must be struck out. See Oloriode & Ors. v. Oyebi & Ors. (1984) 5 SC. 1 at 28. When a party’s standing to sue (i.e. locus standi) is in issue, the question is whether the person whose standing is in issue is the proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable. Oloriode & Ors. v. Oyebi & Ors. (1984) 5 SC. 1 at 28. PER OBASEKI, J.S.C.
OBASEKI, J.S.C. (Delivering the Judgment by the Court): This appeal raises two important questions which will continue to be debated in legal circles for a long time. The 1st question touches the locus standi of the appellant to initiate and institute these proceedings in the High Court. In other words, has the appellant established his locus standi entitling him to seek leave of the High Court to apply for an order of mandamus’ PAGE| 2 The second question concerns the quantum or sufficiency of the facts deposed to and placed before the High Court in an application of this sort. In other words, are the facts in the affidavit evidence sufficient to warrant the grant of leave to apply for the order of mandamus and serve the respondent with notice of the application? Did the applicant make out a prima facie case of failure by the respondent to carry out his statutory duty? These two questions, simple as they are on paper, evoked learned legal arguments from the appellant’s counsel which took us to an examination of the rights conferred on private criminal prosecutors by the Constitution of the Federal Republic of Nigeria 1979 and both the Criminal Code Law and the Criminal Procedure Law of Lagos State. As these proceedings originated in the High Court of Lagos State, it is necessary at this juncture to trace briefly the history of the case from the High Court to the Court of Appeal and from thence to this Court. In the High Court of Lagos State holden at Lagos, the appellant, by originating motion ex pane dated 7th November, 1986 applied for: “an order for leave to apply for an order of mandamus compelling Mr. J.A. Oduneye, Director of Public Prosecutions, Lagos State, to exercise his discretion whether or not to prosecute Col. Halilu Akilu and Lt. Col. A.K. Togun for the murder of Dele Giwa and if he declines to prosecute to endorse a certificate to effect on the information submitted to him by the applicant on Monday the 3rd day of November, 1986 pursuant to section 342(a) of the Criminal Procedure Law Cap 32 Laws of Lagos State 1973.” PAGE| 3 The statement filed along with the application contained the grounds on which the said relief is sought. They are two in number and read as follows: “1. Mr. J.A. Oduneye, Director of Public Prosecutions, Lagos State, has a duty under section 342(a) of the Criminal Procedure Law Cap 32 Laws of Lagos State 1973, upon an information being submitted to him by a private person, to endorse thereon, a certificate stating whether he is declining to prosecute the accused at the public instance. 2. The failure of Mr. J.A. Oduneye, Director of Public Prosecutions, Lagos State, to endorse a certificate on the information submitted to him by the applicant on Monday, 3rd November, 1986 amounts to a breach of his statutory duty under section 342(a) of the Criminal Procedure Law Cap 32 Laws of Lagos State.” Filed along with the motion ex pane for leave is a 14 paragraph affidavit, paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 11 of which I find pertinent and material for the purposes of this judgment. These paragraphs read as follows: “1. That I am a citizen of Nigeria and a legal practitioner. 2. That Mr. Dele Giwa, Male, Nigerian of 25 Talabi Street, Ikeja. was my client and friend before his death; 3. That the said Mr. Dele Giwa was killed by a letter bomb on Sunday, 19th October, 1986 at his residence. 4. That after conducting private investigation and upon the facts at my disposal I prepared a two count information charging; (a) Colonel Halilu Akilu – Director of Military Intelligence; and (b) Lt. Colonel A.K. Togun – Deputy Director of the State Security Service with the murder of the said Mr. Dele Giwa; 5. That on Monday, 3rd November, 1986, I submitted to Mr. J.A. Oduneye, the Director of Public Prosecutions, Lagos State, the said information together with the proofs of evidence, for his certificate under section 342(a) of the Criminal Procedure Law of Lagos State. Copies of the information together with all relevant documents including the proofs of evidence are annexed herewith and marked Exhibit “GF” PAGE| 4 6. That on Thursday, 6th November, 1986, I returned to the said Director of Public Prosecutions to obtain his certificate under section 342(a) of the Criminal Procedure Law Cap 32 Laws of Lagos State, 1973 but he told me orally that he could not come to a decision whether or not to prosecute the accused persons at public instance as per my information and proof of evidence. 7. That further to paragraph 6 above, the said Director of Public Prosecutions refused to give me his reply in a written form. 8. That by the failure of the said Director of Public Prosecutions to exercise his discretion under section 342(a) of the Criminal Procedure Law of Lagos State, it is impossible for me to apply for the consent of a judge of the High Court of Lagos State to the preferment of the information against the accused persons. 9. That by the said failure of the Director of Public Prosecutions to exercise his discretion one way or the other, I do not know whether or not the accused persons will be prosecuted for the murder of Mr. Dele Giwa. 10. That further to paragraph 9, the accused persons have not been arrested by the Nigeria Police Force and they are still moving freely within Nigeria; 11 That if the said Director of Public Prosecutions endorses his certificate on the information and declines to prosecute the accused persons at public instance, I will prosecute the accused persons according to the Laws of Lagos State in particular and those of Nigeria in general.” The application ex parte came up for hearing before Candide Ademola Johnson, C.J. After hearing the applicant, the learned Chief Judge, in a reserved Ruling, dismissed the application and refused the leave to apply for an order of mandamus. But the learned Chief Judge conceded to the applicant the right to apply or present the application as a private person. The learned Chief Judge therefore considered it unnecessary to examine the issue of locus standi in detail. The learned Chief Judge considered the provision of section 191 of the Constitution of the Federal Republic of Nigeria 1979 and the duty of the Director of Public Prosecutions as an officer in the Department in the charge of the Attorney- General. The learned Chief Judge then considered the conditions to be satisfied by the appellant to entitle him to the grant of leave to apply for an order of mandamus. These he stated to be (1) the existence of a special application and (2) the existence of a refusal by the respondent. These were the conditions stated in paragraph 1021 at page 324 of Vol. 16 English and Empire Digest. It reads – PAGE| 5 “A special application and refusal are conditions precedent to a mandamus to compel performance of a duty. No general declaration of the party not to perform the duty required supersedes the necessity of such application – R. v. Chapman (1845) 4 L.T.O.S. 332.” The learned Chief Judge conceded that the appellant made a special application. He did not go beyond that. He then examined whether there was a refusal of the application. The learned Chief Judge appreciated the fact that a refusal need not be by words or positive words. The acts of the parties may tantamount to a refusal and it should be shown that in effect there had been a refusal. The learned Chief Judge then proceeded to hold: “It appears to me important to appreciate that the need to endorse any certificate would only arise when a decision has been taken one way or the other. Here, as it appears, no decision has yet been taken… In my view, this is not strictly correct. Indeed, it is an erroneous statement of the law. This is evident from a close examination of the provisions of section 342(a) of the Criminal Procedure Law. That paragraph reads: ‘The registrar shall receive an information from a private person If it has endorsed thereon a certificate by a law officer to the effect that he has seen such information and declines to prosecute at the public instance the offence therein set forth.” The duty that the appellant complains of the respondent has not carried out is that “having seen the information and having failed to decide to prosecute at the public instance the offence therein set forth, the Director of Public Prosecutions refused to endorse thereon “that he has seen the information and declines to prosecute at the public instance the offence therein set forth.” Where a law officer expresses that he is unable to come to a decision to prosecute, it cannot be interpreted that he has come to a decision to prosecute. It is more consonant with reason to hold that at that point of time, he has declined to prosecute. The reason for taking such a stand is not relevant at this stage and need not be enquired into for the purpose of the application for leave. What is relevant is the failure or refusal (1) to take a decision to prosecute or not to prosecute and (2) to endorse on the information that he declines to prosecute at public instance. PAGE| 6 The learned Chief Judge then proceeded to examine the affidavit evidence to ascertain whether there is evidence constituting a refusal which will entitle the appellant to seek an order to compel the respondent D.P.P. to act. After referring to paragraphs 4 to 6 of the affidavit, he considered and held that it was the duty of the police to conduct detailed investigation into crime to enable the D.P.P. and other law officers consider and decide on the merit of the report the justification for undertaking a prosecution or declining it. The decision to defer and investigate amounts to a refusal to prosecute the offences stated in the information on the proofs of evidence supplied at public instance. This is borne out by the last two paragraphs of the Ruling of the learned Chief Judge which read: “After all there is no time limit for the exercise of the power vested on the Attorney-General or the D.P.P. to prosecute, although one would expect such power to be exercised within a reasonable time. Even if one considers the reasonableness of time, I would say that the incident that gave birth to the death of Dele Giwa is not only unique in its form but also complex and would require sufficient time to conduct detailed and balanced investigation, a report on which the appropriate authority could reasonably act. The timing here appears hasty and premature. It appears implusive without giving reasonable time and chance for a detailed and balanced investigation into this sordid incident.” It would appear the learned Chief Judge was looking beyond the compass of the application before him. He went far beyond to consider the merit of the case against the accused persons. The power the D.P.P. is to exercise at this stage is strictly limited. As indicated by the trend of his arguments, the learned Chief Judge dismissed the application for leave as misconceived. The appellant being dissatisfied with the decision appealed to the Court of Appeal. He filed five grounds of appeal which read: “1. The learned trial judge erred in law in refusing the ex parts application: – Particulars of Error (a) It was clear that a prima facie case for the grant of leave was made out by the applicant. (b) The court at this stage should not be concerned with the totality of the strength or merits of the substantive application. PAGE| 7 2. The learned trial judge erred in law when he held that although the Director of Public Prosecutions had a discretion but that he could exercise the discretion at any time convenient to him; Particulars of Error (a) That in a private prosecution under the Laws of Lagos State, the stage of the exercise of the discretion is clearly delimited. (b) That the duty to exercise that discretion arises when the information is submitted by the private prosecution (prosecutor) and such duty is not at large. (c) It is only in public prosecution that the Director of Public Prosecutions can choose his time not when he has to determine whether or not to allow private prosecution. 3. The learned judge erred in law in coming to the conclusion that there must be a refusal before an order of mandamus can issue; Particulars of Error (a) By virtue of the decision in Shitia-Bey v. Federal Public Service Commission (1981) SC.40 at 52-53, it is not necessary that there must be in all cases a refusal before mandamus issues. (b) The duty of the Director of Public Prosecutions to exercise his discretion arises when a private prosecutor forwards his information to the Director of Public Prosecutions by virtue of section 342 of the Criminal Procedure Laws of Lagos State. 4. The learned trial judge erred in law in coming to the conclusion that the timing of the application is hasty and premature when neither the provisions of the Criminal Procedure Law of Lagos State nor the 1979 Constitution (as amended) prescribes the strength and time of presentation of the information by the private prosecutor. 5. The learned trial judge erred in law in determining the entire application for mandamus while determining the application for leave as the court should not be concerned with the strength or merits of the substantive application for mandamus at this state. PAGE| 8 At the hearing of the appeal, the issue of locus standi with the leave of the Court of Appeal was raised and arguments of counsel were heard on the matter. The Court of Appeal ruled against the appellant on the issue and held that he had no locus standi. On this issue, Nnaemeka-Agu, J.C.A. (as he then was) (with the concurrence of Kutigi and Kolawole, J.J.C.A.) said (after citing the provision of section 18(5) of the High Court Laws of Lagos State): “Such personal and private interest has not been shown. It is clear that neither the fact that the appellant was a friend and counsel of the deceased, as he deposed to in his affidavit in support, nor the fact that he is seeking to be a private prosecutor if the respondent takes action under section 342 of the Criminal Procedure Law, for what I have said, is sufficient to give him locus standi. For these reasons, I should strike out the appeal on the ground that the appellant has no locus standi.” The learned justice then proceeded to consider the merit of the application. The applicant submitted that an applicant for leave to apply for an order of mandamus is entitled to the leave sought once he has complied with the rules of court and procedure thereof. On the other hand, Mr. Oduneye submitted that the learned judge’s grant of the application is not automatic on the applicant complying with the rules. He submitted that the judge had a discretion to grant or not to grant it based on the affidavit and statement before the court. The learned justice after quoting the dictum from the case of Rex v. Inland Revenue Commissioners ex parte National Federation of Self Employed and Small Business Ltd. (1982) AC 617 that the requirement of leave is designed: “to prevent the time of the court being wasted by busy-bodies with misguided or trivial complaints of administrative error, and to remove the uncertainty public officers and authorities might be left in as to whether they could safely proceed with administrative action when proceedings for judicial review of it were actually pending, even though misconceived.” rejected the submission of the appellant that the function of the learned Chief Judge at that stage was merely to be satisfied with compliance with the rules and that he had locus standi. PAGE| 9 The learned Justice then examined the papers filed along with the information to see whether a prima facie case is established. The learned justice then said; “No, I have read the ruling of the learned C.J. over and over again. It appears to me that he refused to grant leave to the appellant on only one ground, that is that the respondent had not refused to do his duty under section 342 of the Criminal Procedure Law and that the circumstances of the case were such that he could not be forced to do so on the limited materials before him” …I believe the learned Chief Judge was right. For the general rule is that before the applicant is entitled to the order, he must have addressed a direct distinct specific demand or request to the respondent to do a duty imposed upon him by law and the respondent must have unequivocally, either expressly or by necessary implication manifested his refusal to comply ……. But on the facts of this case, there was neither an express refusal nor a delay or a persistent temporising and failure to give an answer that could by any stretch amount to a refusal … I therefore hold the view that ff he should signify without mature and full consideration that he would not prosecute the offenders and so signify as he is required to do under section 342 of the Criminal Procedure Law only to turn round at a later date when full investigations might have been completed to take over the prosecution as the appellant has suggested he would be seen as not having acted with that full sense of responsibility required of his office. It is significant that section 191(3) of the Constitution enjoins that ‘in exercising his powers under this section the Attorney-General shall have regard to the public interest and the interest of justice and the need to prevent the abuse of legal process… What is disturbing in the judgments of the two courts below is the fact that the court took up the position of an advocate for the Director of Public Prosecutions. Without hearing from the D.P.P. the learned Justice of the Court of Appeal and the learned Chief Judge of Lagos State poured out on paper what must be his explanation for not endorsing the information that he declined to prosecute the accused on the materials available in the proof of evidence. If an Attorney-General is entitled to enter a nolle prosequi at any time and at any stage of the proceedings before judgment, what prevents him from exercising his constitutional powers to take over and continue prosecution of the case from the private prosecution at any time and at any stage of the proceedings before judgment? I say nothing prevents him. PAGE| 10 The Court of Appeal on the merits dismissed the appeal on the ground that it is lacking in merits. The appellant was dissatisfied with the decision of the Court of Appeal and has appealed against that decision to this court on 5 grounds. These grounds without their particulars read: 1. The Court of Appeal erred in law in striking out the appeal on the ground that the appellant had no locus standi Particulars of Error 2. The learned Justices of the Court of Appeal misdirected themselves in law and thereby came to a wrong conclusion when they said: ‘Therefore a private person who takes out a mandamus to compel a public functionary to prosecute or to give himself a fiat to prosecute must first show that he has a locus standi’ Particulars of Error …………………………………………… 3. The learned Justices of the Court of Appeal misdirected themselves. in law and thereby came to a wrong conclusion with respect to locus standi of the appellant in this case when they held as follows per Nnaemeka-Agu, J.C.A., ‘Such personal and private interest has not been shown. It is clear that neither the fact that the appellant was a friend and counsel for the deceased as he deposed to in his affidavit in support, nor the fact that he is seeking to be a private prosecutor if the respondent takes action under section 342 of the Criminal Procedure Law for which I have said, is sufficient to give him a locus standi.’ Particulars of Misdirection …………………………………..…………… 4. The learned justices of the. Court. of Appeal. erred in. law in dismissing the appeal by confirming the refusal of the trial judge of the High Court ‘to grant leave to the appellant on only one ground, that is that the respondent has not refused to do his duty under section 342 of the Criminal Procedure Law and that the circumstances of the case were such that he could not be forced to do so on the limited material before him. Particulars of Error ……………………………………………… PAGE| 11 5. The learned Justices of the Court of Appeal erred in law in considering and determining the merits of the substantive application for mandamus (yet to be filed) instead of restricting themselves to the consideration of the ex parte application for leave to apply for mandamus which was the matter before the High Court in relation to which an appeal was lodged. It is therefore apparent from the grounds of appeal that only the two issues earlier set out in the opening paragraphs of this judgment were raised. These are: (1) the issue of locus standi: and (2) the issue of quantum of proof of materials to support the application for the leave. I shall deal with these issues separately in the light of the powerful submissions of counsel. It is only on very rare occasions that the courts have cause to consider the question of locus standi in criminal proceedings. It frequently arises for consideration in civil proceedings. Although it cannot be said that an application for an order of mandamus or the application for the grant of leave to apply for an order of mandamus in the circumstances of this case is not a civil proceeding, the main purpose of the order sought is to enable the initiation of criminal proceeding. A murder has been committed and a prosecution of suspects for the offence is desired. The questions may be asked: (1) whose rights are injured when a murder is committed? (2) on whom does our laws and Constitution confer power and impose obligations to prosecute for the offence? (3) are these rights and obligations common law rights and obligations or statutory rights and obligations? I proposed to approach these questions by dealing first with crime as a legal concept with particular reference to the offence of murder. PAGE| 12 When the crime of murder is committed, very many questions must be considered in order to arrive at the correct answer to the issue of locus standi. All recent judicial pronouncements on this issue have found inspiration and guidance from the provisions of section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1979 which reads: ‘The judicial powers vested in accordance with the foregoing provisions of this section – shall extend to all matters between persons, or between government or authority and any person in Nigeria and to all actions and proceedings relating thereto for the determination of any question as to the civil rights and obligations of that person.” See Senator Adesanya v. The President (1981) 2 NCLR.338 at 385. Irene Thomas v. Olufosoye (1986) 1 NWLR (Part 18) 669. On this issue of locus standi, the appellant submitted that he has locus standi to institute these proceedings having regard to the material facts disclosed in the affidavit evidence filed in support of the originating motion. These facts, he submitted, clearly constituted the cause of action. The appellant cited in support: (1) Adesanya v. President of Nigeria (supra) at p.385 per Bello, J.S.C. at 393 per Ohaseki, J.S.C. (2) Thomas v. Olufosoye (supra) at p.684 per Obaseki, J.S.C. (3) Attorney-General of Kaduna State v. Hassan (1985) 2 N.W. L.R. (Part 8) 483. (4) Orogan v. Soremekun (1986) 5 N.W.L.R. (Part 44) 688 at 700 (5) Egbe v. Adefarasin (1987) 1 N.W.L.R. (Part 47) p. 1 at p.20 per Oputa, J.S.C. (6) Kusada v. Sokoto Native Authority (1968) 1 All N.L.R. 377 at 381 per Lewis J.S.C. approving Pollock B in Read v. Brown (1889) and Brett. J. in Jackson v. Spittal. PAGE| 13 The appellant further submitted that the status of the appellant as a private prosecutor and the respondent as a public prosecutor is vested in them by law, – section 342 and 343 of the Criminal Procedure Law, Laws of Lagos State and section 191 of the Constitution of the Federal Republic of Nigeria 1979. The rights and obligations conferred by these sections of the Criminal Procedure Law on the appellant and by section 191(1)(b) and (c) on the appellant and respondents are not common law rights but statutory rights and obligations. Civil rights and obligations in the context in which the term is used in provisions of section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1979 means all those obligations which the laws impose on a person. The appellant cited the definition of the term “civil right” given in the two American cases: (1) Bowles v. Habermann 95 N. Y.246, 247: (2) United States v. 24 Live Silver Black Foxes D.C. Wash, 1 F.2nd 933, 934. The appellant then emphasized that crime is an offence against the state. He maintained that the persons to avenge on behalf of the state are (1) the Attorney-General or any other law officer in the department of the Attorney-General as a public prosecutor, or (2) a private person as the appellant. He in conclusion cited section 12 of the Criminal Procedure Law Cap 32 Laws of Lagos State vol. 2 and section 130 of the Criminal Code of Lagos State Cap 31 Laws of Lagos State 1973 in support. The learned Solicitor-General who appeared for the learned D.P.P. -submitted that the appellant has no locus standi whatever. He submitted that it was the sole responsibility of the Attorney- General to initiate criminal proceedings. Following the appellant in this regard, the respondent identified three issues for determination. They are: (1) whether the appellant has a locus standi; (2) whether the appellant has established a prima facie case entitling him to the grant of leave to apply for an order of mandamus; and (3) whether the Court of Appeal considered and determined the merits of the substantive application for leave and if so, whether the approach of the Court of Appeal was wrong? Dealing with the issue of locus standi, the respondent submitted that the appellant has no locus standi. He agreed with the submission that the leading authority on locus standi in Nigeria is the case Senator Adesanya v. President of Nigeria (1981) 2 NCLR. 358 and the constitutional provisions in section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1979. PAGE| 14 He referred to the dictum of Bello, J.S.C. (as he then was) and submitted that the civil rights and obligations of the appellant have not been injured to give him standing to file this application. He submitted that the private person referred to in sections 342 and 343 of the Criminal Procedure Law of Lagos State is a private person whose legal right has been infringed and who also has a personal and private interest in the case. The learned Solicitor-General referred to section 18(5) of the High Court Law of Lagos State Cap 52 Laws of Lagos State as authority in support of his submission. He submitted that the fact of being a friend and lawyer of Mr. Dele Giwa (deceased) did not give him a personal and private interest. He went on to submit that sections 342 and 343 of the Criminal Procedure Law did not confer the right to bring criminal prosecution on any Dick, Tom or Harry but on any body who has a personal and private interest In the prosecution. The appellant, he concluded, could not come within the provision of section 6(6)(b). The learned Solicitor-General then cited the dictum in the case of Queen v. The Guardian of the Lewisham Union (1897) 1 QB 498 at 500 to emphasise the need for the appellant to have a legal specific right to ask for interference of the Court. He also referred to the dictum of Bruce, J. in the same case to the effect that any body who chooses to apply for a mandamus “should have a legal and specific right to enforce the performance of those duties.” Turning to the 2nd and 3rd issues, the learned Solicitor-General submitted that the appellant has not established a prima facie case entitling him to leave to apply for mandamus. He observed that the trial court considered the facts as deposed to by the appellant in his affidavit in support and also the proof of evidence in support of the two count charge on this information. He contended that the appellant is not a party contemplated by section 191 of the Constitution of the Federal Republic of Nigeria 1979 but a busybody. The learned Solicitor-General referred to the proof of evidence supplied by the appellant as a collection of statements signed by the members and friends of the family of the deceased Dele Giwa and submitted that there was no investigation carried out and that the proof of evidence is one sided. He referred to areas of the matter not investigated by the appellant and said there was no opportunity given to Col. Akilu and Lt. Col. Togun to explain their roles. Learned Solicitor-General then went on to submit that an Attorney- PAGE| 15 General or the Director of Public Prosecutions worth his salt will hesitate to file the information that the appellant submitted to the respondent. The submission has more than anything also brought out more clearly the reaction of the respondent to the information. The reaction, in my view, is one of refusal to prosecute the offences stated in the information. It is because he has refused to endorse a certificate to that effect on the information that the appellant and the respondent are in court. The D.P.P. has not been dragged to court because he declined to prosecute the offences stated in the information. He has not been blamed for following the dictates of subsection (3) of section 191 of the Constitution of the Federal Republic, 1979. He then went on to observe that it is not unusual for the D.P.P. to ask for more information from the police before he could come to a rational decision as to whether to prosecute or not to prosecute. If the D.P.P. requires more information, the issue of prosecuting does not arise. The decision is clear. It is that he will not prosecute on the available material the offence stated. To contend that the respondent did not refuse to prosecute as the learned Solicitor-General contends is to run away from the obvious. Continuing his submission on the issue of establishing prima facie case, he contended that it is not merely satisfying sections 342 and 343 of the Criminal Procedure Law of Lagos State that confers on the appellant a prima facie case. He must show in his affidavit that his case is not frivolous and vexatious, he further contended and cited the dictum of Lord Diplock in the case of Rex v. Inland Revenue Commissioners ex parts National Federation of Self Employed and Small Business Ltd. (1982) AC 617 that the requirement of leave is designed: “to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints of administrative error, and to remove the uncertainty public officers and authorities might be left in as to whether they could safely proceed with administrative action when proceedings for judicial review of it were actually pending even though misconceived.” I may observe that the learned Solicitor-General is trying by this argument to elevate the status of the law officer’s function under section 342(a) to that of the judge when consent to prosecute is sought under section 340(2) of the Criminal Procedure Law of Lagos State. The object of section 342(a) is to prevent double prosecution – one by the law officer and the other by the private person. Both the law officer and the private prosecutor will need to obtain the consent of the judge to file information where the accused has not been committed for trial after a preliminary investigation. The law and the Constitution have not imposed on or transferred to the law officers the function of the judge in this regard. PAGE| 16 The comment that it will be a sad day in the country, if anybody is allowed to bring any spurious criminal charge against a fellow citizen without proper investigations is therefore uncalled for. The barrier created by the requirement of consent of the judge to the filing of the information is the surest safeguard against such occurrences. It is a universal concept that all human beings are brothers and are assets to one another. All human beings living in the same country and being citizens of the same country are more closely related to one another and are in truth and in fact each other’s keeper than those living in countries separated by great distances. The death of one is a loss to the other whether by natural or felonious means. The provisions of sections 126 – 130 of the Criminal Code Laws of Lagos State Cap 31 leave one in no doubt as to the obligations on every person in Lagos State to see that any criminal or offender is brought to justice and that no one help him to escape justice. So also are the provisions of sections 12, 59, 77 and 81 of the Criminal Procedure Law. Criminal Law is not like the law of procedure meant for lawyers only but is addressed to all classes of society as the rules that they are bound to obey on pain of punishment. Turning to the Lagos State Criminal Code, the provisions of section 126 – 130 which I find relevant and apposite are as follows: Section 126 deals with perverting justice and reads: “(1) Any person who conspires with another to obstruct, prevent, pervert, or defeat the course of justice is guilty of a felony and is liable to imprisonment for seven years. The offender cannot be arrested without a warrant. (2) Any person who attempts, in any way not specially defined in this code, to obstruct, prevent, pervert, or defeat, the course of justice is guilty of a misdemeanour, and is liable to imprisonment for two years. Section 127 deals with compounding felonies and reads: “Any person who asks, receives, or obtains or agrees or attempts to receive or obtain any property or benefit of any kind for himself or any other person upon any agreement or understanding that he will compound or conceal a felony, or will abstain from, discontinue or delay a prosecution for a felony or will withhold any evidence thereof is guilty of an offence. PAGE| 17 If the felony is such that a person convicted of it is liable to be sentenced to death or imprisonment for life, the offender is guilty of a felony and is liable to imprisonment for seven years. In any other case, the offender is liable to imprisonment for three years. The offender cannot be arrested without a warrant,” Section 128 deals with compounding penal actions and I need not set out its provisions. Section 129 deals with advertising a reward for the return of stolen or lost property and it reads: “Any person who – (1) publicly offers a reward for the return of any property which has been stolen or lost, and in the offer makes use of any words purporting that no questions will be asked or that the person producing such property will not be seized or molested; or (2) publicly offers to return to any person who has bought or advanced money by way of loan upon any stolen or lost property the money so paid or advanced or any other sum of money or reward for the return of such property; or (3) prints or publishes any such offer; is guilty of a simple offence, and is liable to fine of one hundred Naira.” Section 130 of the Criminal Code deals with delay to take any person arrested before a court and reads: “Any person who, having arrested another upon a charge of an offence, wilfully delays to take him before a court to be dealt with according to law is guilty of a misdemeanour, and is liable to imprisonment for two years.” The law therefore imposes a duty on all persons not only to deprive criminals of all hiding places but to ensure that they are arrested, prosecuted and brought to justice. On the issue of effecting arrest for crimes in Lagos State, section 12 the Criminal Procedure Law Cap 52 Vol. II Laws of Lagos State 1973 is explicit and very clear on the powers of a private person. It reads: PAGE| 18 “Any private person may arrest any person in the Lagos State who, in his view, commits an indictable offence, or whom he reasonably suspects of having committed an offence which is a felony or of having committed by night an offence which is a misdemeanour… This section read together with section 130 of the Criminal Code (supra) puts the right and duty of a private person In the prosecution of crimes beyond doubt and in proper perspective. On the issue of complaint, section 59 of the Criminal Procedure Law empowers anybody or any person to make a complaint against any other person alleged to have committed or to be committing an offence provided the enactment under which the offence is laid does not specify who the complainant shall be. It reads: “(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 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. (2) Notwithstanding anything to the contrary contained in any enactment, a police officer may make a complaint in a case of assault even though the party aggrieved declines or refuses to make a complaint.” In the instant case, the complaint on which the information was drafted is for the offence of murder. Murder is made an offence in section 315 and 316 of the Criminal Code. That section 316 reads: “Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say: (1) if the offender intends to cause the death of the person killed or that of some other person; (2) if the offender intends to do to the person killed or to some other person some grievous harm; PAGE| 19 (3) ………………………………………………………………………………………. (4) ………………………………………………………………………………………. (5) ………………………………………………………………………………………. (6) ………………………………………………………………………………………. is guilty of murder.” The Criminal Code does not by its provisions confine complaint in respect of this offence of murder to a particular person or class of persons. Any person who has sufficient information in his possession to establish the crime and identify the accused person is entitled to lay the charge. In the instant appeal, the appellant is eminently qualified under the law. The facts show that the appellant drafted the information charging the two accused persons, Col. Halilu Akilu and Lt. Col. A.K. Togun with the murder of Dele Giwa under section 316 of the Criminal Code and took it together with the proof of evidence on which the charge was founded to the respondent. He did not sign the information because section 341(1) of the Criminal Procedure Law Cap 32 Laws of Lagos State 1973 provides: “All information shall, subject to the provisions of subsection 2 and section 342, be signed by a law officer.” The appellant is not a law officer as defined in section 2 of the Criminal Code Cap’31. Therein law officer is defined as meaning the Attorney-General and the Solicitor-General of the State and includes the D.P.P. and such other qualified officers by whatsoever names designated to whom any of the powers of a law officer are delegated by law or necessary intendment. There is provision for other public officer or person to sign information. It is subsection(2) of section 341 of the Criminal Procedure Law which reads: “Where the State Commissioner shall for reasons of public convenience think fit, an information may be signed by any other public officer or person whom the State Commissioner may delegate.” PAGE| 20 The conditions under which a private person can sign an information are set out in section 342 of the Criminal Procedure Law which reads: ‘The Registrar shall receive an information from a private person if – (a) it has endorsed thereon a certificate by a law officer that he has seen such information and declines to prosecute at the public instance the offence therein set forth, and (b) such private person has entered into a recognizance in the sum of one hundred Naira, together with one surety to be approved by the Registrar in the like sum to prosecute the said information to conclusion at the times as which the accused shall be required to appear and to pay such costs as may be ordered by the court or in lieu of entering into such recognizance shall have deposited one hundred Naira in court to abide the same conditions.” It is only after complying with the above conditions that the appellant can sign the information and present it for the consent of the Judge to prefer the information in order that it can be filed in court and prosecuted. These are clearly stated in section 343 and section 340 of the Criminal Procedure Law Cap 32 which read as follows: Section 343: “Where any private person has complied with the provisions of section 342, the information shall be signed by such person and not by the law officer, or other person designated by the State Commissioner as aforesaid and such person shall be entitled to prosecute the information but nothing in this section shall be construed so as to exclude the provisions of section 8 of the Lagos State (Interim Provisions) Decree 1968, no information can proceed to trial without compliance with section 340. It reads: “(1) Subject to the provisions of this section, an information charging any person with an indictable offence may be preferred by any person before the High Court charging any person with an indictable offence for which that person may lawfully be indicted, and whenever an information has been so preferred; the registrar shall, if he is satisfied that the requirement of the next following section has been complied with file the information and it shall thereupon be proceeded with accordingly. Provided that if the registrar shall refuse to file an information, a judge, if satisfied that the said requirements have been complied with may, on application of the prosecutor, or on his own motion, direct the registrar to file the information and it shall be filed accordingly; (2) Subject as hereinafter provided, no information charging any person with an indictable offence shall be preferred unless either – (a) the person charged has been committed for trial, or (b) the information is preferred by the direction of or with the consent of a judge or pursuant to an order made under part 31 to prosecute the person charged for perjury; PAGE| 21 Provided: (i) ………………………………………………………………………………………. (ii) ………………………………………………………………………………………. (3) If information preferred otherwise than in accordance with the provisions of the last foregoing section has been filed by the registrar, the information shall be liable to be quashed. Provided: (a) ……………………………………………………………………………….. (b) ………………………………………………………………………………………. I am aware of the powers of the Attorney-General of the State under section 191(1) of the Constitution of the Federal Republic of Nigeria, 1979. The provisions of this section envisage a situation where a prosecution already commenced by a private person can be taken over and continued or discontinued. The private person could not, in view of the provisions of the Criminal Procedure Law as amplified and set out above have commenced the prosecution without compliance with the relevant sections of the Criminal Procedure Law. More expressly, section 191 of the 1979 Constitution 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 or an Edict promulgated by the Military Governor of a State; (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 PAGE| 22 (2) The powers conferred upon the Attorney-General under subsection (1) 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 shall have regard to the public interest, the interests of justice and the need to prevent abuse of legal process.” The powers exercisable by the Attorney-General pursuant to section 101 (b) and (c) are unfettered. They are not fettered by any action he may have taken pursuant to section 342 of the Criminal Procedure Law to endorse on the information presented to him by the private person with a certificate that he has seen the information and declines to prosecute the offence set forth therein at public instance, That certificate will not deter him from taking over and continue the criminal proceedings instituted by the private person. The certificate will not bar him from discontinuing any such proceedings which have been instituted. It is therefore idle for the respondent to found the reasons for not making up his mind not to prosecute the offences stated in the information delivered by the appellant at public instance on the paucity of investigatory materials supplied and his desire to augment it by materials to be secured by him. The Constitution has given him latitude to conduct his own independent investigation and act on independent materials obtained as a result of such investigation. The non-availability of such material and the inability of the D.P.P. to take a decision to prosecute will not and cannot affect the locus standi of the appellant to initiate these proceedings nor do they weaken the strength of the case for an order for leave to apply for an order of mandamus. The respondent is not entitled to obstruct the progress of the appellant in his attempt to effect compliance with the provisions of section 340, 342 and 343 of the Criminal Procedure Law by his adverse comment on the want or sufficiency of the evidence supplied by his proof of evidence while at the same time refusing to endorse the certificate of his disinclination to prosecute at public instance on the information. That adverse comment is reserved for the judge and the prerogative of the judge to make, If and when his consent to file the information is sought. I am not concerned at this stage with the ascertainment whether the proof of evidence is sufficient to establish a prima facie case of murder against the accused. I am also not concerned at this stage with the ascertainment of the reasons for the refusal to endorse the certificate required. I am only concerned with the question whether the (D.P.P.) respondent, having seen the information and having failed to decide to prosecute at public instance is not under a duty to endorse the information with the certificate required to that effect. PAGE| 23 This issue was raised for the first time in the Court of Appeal. It was not raised in the High Court. Nevertheless, the learned trial judge conceded that the appellant had locus standi. This pronouncement was probably made to give prominence to the fact that he adverted his mind to the issue although the application for leave was ex parte. It is fundamental that an applicant for leave to apply for an order of mandamus must have locus standi to make the application before leave can be granted by the court. Indeed, the party making any claim and bringing any application before the court must have locus standi. See Senator Adesanya v. President of Nigeria (supra) Irene Thomas v. Olufosoye (supra) Amusa Momoh & Anor. v. Jimoh Olotu (1970) 1 All NLR. 117. If the plaintiff has no locus standi, the court has no jurisdiction to entertain the matter and it must be struck out. See Oloriode & Ors. v. Oyebi & Ors. (1984) 5 SC. 1 at 28. When a party’s standing to sue (i.e. locus standi) is in issue, the question is whether the person whose standing is in issue is the proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable. Oloriode & Ors. v. Oyebi & Ors. (1984) 5 SC. 1 at 28 per Obaseki, J.S.C. Thus, one has to look at the cause of action and the facts of the case to ascertain whether there is disclosed a locus standi or standing to sue. Adesanya v. President of Nigeria (1981) 2 NCLR.358 at 393. The cause of action, if any, will disclose facts from which it could be ascertained whether there is an infringement of or violation of the civil rights and obligation on the party which, if established before the court, will entitle him to relief or remedy. It is the contention of the respondent that the facts on which the application to the court are based are in respect of a crime and criminal prosecution and the civil rights and obligation of the applicant have not been infringed or violated by the murder of Dele Giwa. The power to initiate criminal prosecution whether by the Attorney-General or by a private prosecutor or other authority is a right in the broad sense. It is recognised by the laws and the Constitution of the Federal Republic of Nigeria 1979. It is, in respect of the State, recognised by section 191 of the Constitution and, in respect of the Federation, it is recognised by section 160 of the Constitution. While the right of any other authority or person to institute criminal proceedings is recognised by the two sections, the two sections confer specific powers on the Attorney-General. PAGE| 24 (a) To institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court martial; (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 by him or any other authority or person. The Criminal Procedure Law of the Federation and of the States make abundant provisions conferring powers of arrest and to undertake and institute criminal prosecution on private persons. Salmond on Jurisprudence 12th Edition at page 228 said. “yet another class of legal rights consists of those which are termed power” and at p.229: “A power may be defined as ability conferred upon a person by the law to alter by his own will directed to that end, the rights, duties, liabilities or other, legal relations, either of himself or of other persons. Powers are either public or private. The former are those which are vested as an agent or instrument of the functions of the state; they comprise the various forms of legislative, judicial and executive authority. Private powers on the other hand, are those which are vested in persons to be exercised for their own purposes and not as agent of the state. Power is either the ability to determine the legal relation of other persons or ability to determine one’s own. The first of these – power over other persons – is sometimes called authority’ the second – power over oneself – is usually termed capacity. The correlative of a power is a liability. This connotes presence of power in someone else; as against the person with the liability. It is the position of one whose legal rights (in the wide sense) may be altered by the exercise of a power…………………………………… The most important form of liability is that which corresponds to the various powers of action and prosecution. Such liability is independent of the question whether the particular action or prosecution will be successful and is therefore independent of (say) the duty to pay damages for a civil wrong. A tortfeasor is under a duty to pay damages for a wrong (this is called ‘tortuous liability’) and is liable to be sued in tort; but a person who has committed no tort is also liable to be sued in tort though in this case the action will fail.” PAGE| 25 This brings me to the consideration of section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1979 and power. Power as rights in the wide sense must, in my view, be in contemplation of section 6(6)(b). This section expressly provides that: ‘The judicial powers vested in accordance with the foregoing provisions of this section in (b) shall extend to all matters between persons or between governments or authority and any person in Nigeria, and to all actions and proceedings relating thereto for the determination of any question relating to the civil rights and obligations of that person” Can it be said that there is no question relating to the civil rights and obligations of the appellant? There certainly is a question raised about the right of the appellant to have endorsed on the information submitted to the D.P.P. and the duty of the D.P.P. to endorse on the information a certificate that he has seen the information and he declines to prosecute at public instance. This question arises as a result of the refusal of the D.P.P. to endorse the certificate on the information as required by section 342(a) of the Criminal Procedure Law. Although the information Is initiating criminal prosecution, the application for the order for mandamus is a civil proceedings so also the application for leave. Adesanya v. President of Nigeria (supra) and Irene Thomas v. Olufosoye (supra) are both in respect of a civil cause or matter and provide sound and solid authority for the locus stencil of the appellant. The narrow confines to which section 6(6) (b) restricts the class of persons entitled to locus standi in civil matters have been broadened by the Criminal Code, the Criminal Procedure Law and the Constitution of the Federal Republic of Nigeria 1979. The powers of arrest and prosecution conferred by the various sections of the Criminal Procedure Law and the Criminal Code on “any person” has the magic effect of giving locus standi to any person who cares to prosecute an offender if, and only if, he saw him committing the offence or reasonably suspects him of having committed the offence. Criminal Law is addressed to all classes of society as the rules that they are bound to obey on pain of punishment to ensure order in the society and maintain the peaceful existence of society. The rules are promulgated by the representatives of society who form the government or the legislative arm of government for the benefit of the society and the power to arrest and prosecute any person who breaches the rule is also conferred on any person in the society in addition to the Attorney-General and other law officers for the benefit of the society. PAGE| 26 The peace of the society is the responsibility of all persons in the country and as far as protection against crime is concerned, every person in the society is each other’s keeper. Since we are all brothers in the society, we are our brother’s keeper. If we pause a little and cast our minds to the happenings in the world, the rationale for this rule will become apparent. There have been cases where brother assaults or kills brother, cases where a father assaults or kills his son, where a son kills his father, where a husband kills his wife and where a wife kills her husband. If consanguinity or blood relationship is allowed to be the only qualification for locus standi, then crimes such as are listed above will go unpunished, may became the order of the day and destabilise society. Can it be said that the death of Dele Glwa is not as much a sad and bitter loss to his friend, lawyer and confidant as it is to his family? The answer to the first question, therefore, in my view, is in the affirmative, that is that the appellant has locus standi. The right of private persons to initiate criminal proceedings is not a new creation. It has existed from colonial times and even before colonial times. In England, it is not unknown and it is referred to in paragraph 97 of Vol.ll Halsbury Laws of England 4th Edition page 68 which in part reads: “In the absence of statutory provisions to the contrary any person may of his own initiative and without any preliminary consent institute criminal proceedings with a view to an indictment but there are some statutes which require that certain criminal proceedings should be undertaken only by order of a Judge or by the direction or with the consent of the Attorney-General, the D.P.P. or some other official persons or body…….” That therefore brings me to the question of mandamus. It appears to me that the learned trial Judge, Candide Ademola Johnson, C.J. and the learned Justices of the Court of Appeal failed to address their minds to the real issues before them. With respect, in is my view that they averted their minds more (1) to the merit of proof of evidence compiled by the appellant in support of the charge of murder, (2) to the insufficiency of the time given by the appellant for a reply from the respondent and (3) the need for the respondent to conduct his own independent investigation of the crime than to the failure of the respondent to carry out a simple statutory public duty. An order of mandamus is directed to an individual, body, tribunal or inferior court requiring the performance of some specified thing in the nature of a public duty appertaining to his office. The performance of the duty need not involve a judicial function. In the instant appeal, the duty the respondent is required to perform does not involve a judicial function. PAGE| 27 The law is certain that the proposed recipient of the order must be an individual, body, tribunal or inferior court with a public duty to the applicant. It is not available where there is no duty but only a discretion [see R v. Northumberland Quarter Sessions ex p. Williamson (1965) 2 All E. R. 87 (1965) 1 W.L.R. 700; Re: Fletcher’s Application (1970) 2 All ER. 57.] The duty must be reasonably certain [R. v. Wilts & Barks Canal Co. (1912) 3 KB. 623] but may be a duty to exercise a discretion [R. v. Vestry of St. Pancras (1890) 24 QBD. 371; Padfield v. Minister of Agriculture, Fisheries and Food (1968) AC. 997 (1968) 1 All E.R. 694 HL; R. v. Beacontree J.J. ex p. Mercer (1970) Cr. LR. 103.]. The appellant, as a person, a Nigerian, a friend and legal adviser to Dele Giwa, deceased, has a right under the Criminal Procedure Law to see that a crime is not committed and if committed, to lay charge for the offence against any one committing the offence in his view or whom he reasonably suspects to have committed the offence. The law has given every person that right in order to uproot crime from our society. The respondent as a law officer who has seen the information drawn up by the appellant and has declined to prosecute the offence therein stated at public instance is under a clear duty to endorse a certificate to that effect on the information. Since the respondent has failed to carry out the statutory duty, the appellant is justified in bringing this application for the order of mandamus by a two stage procedure. The 1st stage is to apply ex parte for leave to apply for the order. The Rules of Court and the Law prescribe this. Thus, it is first necessary to obtain leave to apply for the order of mandamus. See Halsbury Laws of England 4th Edition Vol. ll paragraph 1523 et seq. High Court of Lagos State (Court Procedure) Rules Order 53 Rule 1(1) What is the purpose of the leave? It is the requirement of the Rules of Court. It is also to ascertain the locus standi of the applicant. Above all, it is to prevent the time of the court from being wasted by busybodies with misguided trivial complaints of administrative error, and to remove the uncertainty public officers and authorities might be left in as to whether they could safely proceed with administrative action when proceedings for judicial review of it were actually pending, even though misconceived [see Rex v. Inland Revenue Commissioners ex p. National Federation of Self Employed and Small Businesses Ltd. (1982) AC. 6/7.] PAGE| 28 The appellant cannot be described as a busybody with misguided complaints. The Criminal Code and the Criminal Procedure Law of Lagos State, in so far as prevention of crime and punishment of those committing crimes are concerned, have made every one of us, nay, all Nigerians, our brother’s keeper. The second stage of the application comes when leave is granted. It is then that the substantive application is heard. When leave to apply for the order of mandamus has been granted, the applicant must serve an originating motion on all persons directly affected. A copy of the statement must be served with the notice of motion. An affidavit of service must be sworn. The respondent may file an affidavit. Further affidavits may be lodged by the applicant but the Judge or court may decline to consider them. In short, documents used in the first stage are also used in the second stage. The court may refuse to make an order of mandamus: (1) unless it has been shown that a distinct demand for performance of the duty has been made and that the demand has deliberately not been complied with – R. v. Wilts & Barks Canal Co. (1835) 3 Ad & E.C. 477; R. v. Stoke-on-Trent Town Clerk (1912) 2 KB. 518; (2) where there is undue delay; (3) where the applicant’s motives are unreasonable. On the two main issues raised in this appeal. I find for the appellant. The appeal succeeds and is allowed. The decisions of the Court of Appeal and the High Court are hereby set aside and in their stead, it is ordered that leave be granted to apply for an order of mandamus. Leave is hereby granted. The application or originating motion on notice is to be filed and served in the High Court and the matter is remitted and shall be tried or heard by another Judge to whom it shall be assigned by the learned Chief Judge of Lagos State. The appellant is entitled to costs fixed at N300. PAGE| 29 BELLO C.J.N. (Presiding): I had a preview of the judgment just delivered by my learned brother, Obaseki, J.S.C. I agree with his reasons and conclusions. I also will and hereby allow the appeal. The judgments of the Court of Appeal and of the High Court are set aside. I endorse the orders contained in the lead judgment of Obaseki, J.S.C. I shall only make a short comment on the issues of locus standi, which is hereafter referred to as standing. It may be observed that in very clear terms sections 340 and 343 inclusive of the Criminal Procedure Law of Lagos State confer the right or the power, depending on how one may look at it, on private person to prefer and to prosecute before the High Court an information charging any person with an indictable offence. The relevant parts of the sections read: “340(1) Subject to the provisions of this section an information charging any person with an indictable offence may be preferred by any person before the High Court charging any person with an indictable offence for which that person may lawfully be indicted, and wherever an information has been so preferred the registrar shall, if he is satisfied that the requirements of the next following section have been compiled with, file the information and it shall thereupon be proceeded accordingly.” “342. The registrar shall receive an information from a private person if – (a) it has endorsed thereon a certificate by a law officer to the effect that he has seen such information and declines to prosecute at the public instance the offence therein set forth; and (b) such private person has entered into a recognisance in the sum of one hundred naira, together with one surety to be approved by the registrar in the like sum, to prosecute the said information to conclusion at the times at which the accused shall be required to appear and to pay such costs as may be ordered by the court, or, in lieu of entering into such recognisance shall have deposited one hundred naira in court to abide the same conditions.” “343. Where any private person has complied with the provisions of 342 the information shall be signed by such person and not by a law officer, or other person designated by the State Commissioner as aforesaid and such person shall be entitled to prosecute the information, but nothing in this section shall be construed so as to exclude the provisions of section 8 of the Lagos State (Interim Provisions) Decree, 1968.” PAGE| 30 It follows from the foregoing that the Appellant, being a private person, has the statutory right or power to prefer information before the High Court charging the suspects with the murder of Dele Giwa. However, the exercise by the Appellant of the said right or power is subject to the antecedent conditions prescribed by the said sections. One of such conditions is an endorsement on the information by the Director of Public Prosecutions certifying that he has seen the information and declines to prosecute. It appears therefore obtaining the certificate of the Director of Public Prosecutions is one of the necessary steps towards the exercise of the Appellant’s right or power to prefer the information. Since the Director of Public Prosecutions has not issued the certificate, the ex-parte application for leave to apply for the order of mandamus to compel the Director of Public Prosecutions to endorse the information Is incidental to the exercise of the Appellant’s right or power to prefer and prosecute the information. Accordingly, by the combined effect of section 10(2) of the Interpretation Law, Cap.57, the Laws of Lagos State 1973, which provides: “10(2) An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to doing of it.” and the relevant sections of the Criminal Procedure Law I have earlier on referred to, the Appellant has the statutory right or power to make the ex parte application. The Director of Public Prosecutions by his inaction has frustrated the Appellant’s right to prefer an information and so the statutory right of the Appellant has been adversely affected by the Director of Public Prosecutions’ inaction. The only means by which the Appellant may exercise his right is through the judicial process he has resorted to. I am satisfied the Appellant’s right in this respect falls within the purview of section 6(6) (b) of the Constitution as has been amplified by the decisions of this Court in Adesanya v. President (1981) 1 All NLRA and many other cases that follow it. I hold the Appellant has standing to make the ex- parte application. ESO, J.S.C.: Perhaps, a short background to this case would be necessary to bring out the full effect of the issues for determination by this Court. Towards that end, I would wish, in concurring with the judgment just delivered by my learned brother, Obaseki, J.S.C., a preview of which I earlier had, and with which I am in complete agreement, to state few facts which led to the institution of the application before the High Court of Justice, Lagos State (Candide Johnson C.J.) by the Applicant, Chief Gani Fawehinmi, who is now the Appellant in this Court, and who would, hereinafter, be referred to as the Applicant or Appellant as the case may be. PAGE| 31 Dele Giwa was killed by a letter bomb on Sunday 19th October, 1986, at his residence. The Applicant, who described the deceased as his client and friend said, on oath, that he conducted a private investigation into the death of Dele Giwa, and upon the facts which were at his disposal, he prepared a two-count criminal information charging – Colonel Halilu Akilu, the Director of Intelligence andLt. Col. A.K. Togun, States Security Service (known as SSS) with the murder of the deceased. Now, for a private prosecutor to do that, the law requires a certain procedure. Section 342 of the Criminal Procedure Law, Cap.32 Laws of Lagos State, 1973, is the relevant legislation. It provides an exception to S.341 thereof which requires all information to be signed by a law officer. By virtue of S.342 of the Criminal Procedure Law – ‘The Registrar shall receive an information from a private person if – (a) it has endorsed thereon a certificate by a law officer to the effect that he has seen such information and declines to prosecute at the public instance the offence therein set forth; and (b) such private person has entered into a recognizance in the sum of one hundred naira, together with one surety to be approved by the registrar in the like sum, to prosecute the said information to conclusion at the times at which the accused shall be required to appear and to pay such costs as may be ordered by the court, or, in lieu of entering into such recognizance shall have deposited one hundred Naira in court to abide the same conditions.” In effect, it means that – 1. The Registrar of the High Court has a duty to receive an information from a private person for the purpose of private prosecution on condition that – (a) the information has been endorsed with a certificate by a law officer; (b) the endorsement shows that the law officer has seen the information and (c) he thereafter declines to prosecute the offence which has been set forth in the information at the public instance. PAGE| 32 There is also the additional obligation on the private prosecution of entering into a recognisance to prosecute the said information. What did Chief Gani Fawehinmi do, in pursuance of this provision of the laud? On 3rd November, 1986, he submitted an information to Mr. Oduneye, Director of Public Prosecutions asking him for the statutory endorsement. On 7th November, four days later, he filed an application for leave to apply for an order of Mandamus against the said Mr. Oduneye – “to exercise his discretion whether or not to prosecute Col. Halilu Akilu and Lt. Col. A.K. Togun for the murder of Mr. Dele Giwa and if he declines to prosecute, to endorse a certificate to that effect …………. The grounds relied upon by the applicant were that – (1) The Director of Public Prosecutions had a duty imposed upon him by section 342 of the Criminal Procedure Law and (2) his failure to effect the endorsement amounts to a breach of that duty. Mention must be made of the facts deposed to by the Applicant that he had, on 6th November, 1986, three days after submitting the information to Mr. Oduneye, and a day before he filed this application in question, returned to Mr. Oduneye, who informed him orally – “that he (Oduneye) could not come to a decision whether or not to prosecute the accused persons at public instance as per my information and proof of evidence” Mr. Oduneye, the applicant deposed, refused to give him his reply in writing. The other paragraphs of Chief Fawehinmi’s affidavit are equally important. PAGE| 33 He said – 9. “That by the said failure of the Director of Public Prosecutions to exercise his discretion one way or the other, I do not know whether or not the accused persons will be prosecuted for the murder of Mr. DELE GIWA. 10. That further to paragraph 9 above, the accused persons have not been arrested by the Nigerian Police Force and they are still moving freely within Nigeria. 11. That if the said Director of Public Prosecutions endorses his certificate on the Information submitted to him by me that he has seen the Information but declines to prosecute the accused persons at public instance, I will prosecute the accused persons according to the laws of Lagos State in particular and those of Nigeria in general. 12. That on the other hand if the said Director of Public Prosecutions decides to prosecute the accused persons, 1 will be prepared to assist the Prosecution by giving evidence and in any other lawful manner. 13. That I verily believe that unless the Director of Public Prosecutions exercises his discretion under Section 342(a) of the Criminal Procedure Law one way or the other, the accused persons will go untried.” Chief Fawehinmi exhibited the summary of the proof of evidence collected from Mrs. Funmi Giwa, wife of the deceased and Kayode Soyinka, an eye witness to the death of the deceased. There was also the medical report of the death of the deceased. The report depicted a most agonising picture of the mutilation of the body of the deceased after the bomb incident. The applicant supported his application with a brief before the learned Chief Judge. In a ruling, delivered on 19th November, 1986, Candido Johnson C.J. referred to section 191 of the Constitution of the Federal Republic of Nigeria 1979 which specifies the powers of the Attorney-General and he said – “It appears to me important to appreciate that the need to endorse any certificate would only arise when a decision has been taken one way or the other. Here as it appears, no decision has yet been taken.” PAGE| 34 Then the learned Chief Judge went through the contents of the affidavit in search of facts amounting to refusal on the part of the D.P.P. to entitle the Applicant to seek an order to compel the D.P.P. to act; and in particular, he made reference to the statement credited to the D.P.P. which was that the D.P.P. told the Applicant orally that he (the D.P.P.) could not come to a decision whether or not to prosecute the accused persons at public instance as per the information and proof of evidence supplied by the Applicant. Candide Johnson, C.J. asked himself a question – “Does the statement credited to the D.P.P. in paragraph 6 constitute a refusal to prosecute?” He answered – “It is necessary to remind ourselves that an A.G. or D.P.P., or any other officer of the A.G.’s department in exercising the power conferred in Section 191 of the Constitution performs a quasi judicial function. The known procedure is for the Police who has a public duty so to do to conduct a detailed investigation into a crime committed and submit the report of such investigation to the Attorney-General or any of his officers to enable them consider and decide on the merit of the report so as to determine the justification for undertaking a prosecution or declining to. It is conceded that in appropriate circumstances the report of investigation by a private Prosecutor may be useful. In carrying out this great and complex assignment the A.G. or D.P.P. or any member of the staff so delegated, is not expected to act on any rule of thumb, he is not expected to be rushed or stampeded into a decision. The decision reached is expected to be the product of a solid and mature judgment taking account of the provision of Section 191(3) of the Constitution besides the evidence available to it.” (emphasis mine) Now, these are weighty pronouncements. Be it noted that these reasons or rather excuses given by the learned Chief Judge, on behalf of the D.P.P. and the Attorney-General, classical as they do look, are without evidence by or on behalf of the Respondent. I intend to come to this aspect of the case later. Meanwhile, the learned Chief Judge may, in all fairness and respect to him, be taken to have construed the statement credited by the Applicant to the O.P.P. He, the Chief Judge, in pursuance thereof, went through the material presented by the Applicant to the D.P.P. and held [now this was the Chief Judge’s decision on the material before the D.P.P., not the D.P.P.’s decision, and it is the latter’s decision that is material.] PAGE| 35 “I must say it appears one-sided as nothing is there to show what the accounts of the proposed suspects are, to provide a balanced view of the accusation.” The learned Chief Judge concluded – If therefore in that situation, the D.P.P. defers the exercise of his discretionary power, he would in my considered view appear to have exercised that discretion judiciously.” Again, attention must be drawn to the learned Chief Judge’s “lf” clause, and “the situation” envisaged must be the situation as pronounced, not by the D.P.P., but by the Chief Judge. The Chief Judge gave a further reason for the D.P.P. He said – “If therefore in that situation the D.P.P. defers the exercise of his discretionary power, he would in my considered view appear to have exercised that discretion judiciously. Refusal is not the same as deferment. It is an applicant on a refusal that qualifies to apply, not an applicant whose request is deferred. After all there is no time limit for the exercise of the power vested on the A-G., or D.P.P. to prosecute, although one would expect such power to be exercised within a reasonable time. Even if one considers the reasonableness of time, I would say that the incident that gave birth to the death of the late Dele Giwa is not only unique in its form, but also complex and would require sufficient time to conduct detailed and balanced investigation, a report on which the appropriate authority could reasonably act. The timing here appears hasty and premature. It appears impulsive without giving reasonable time and chance for a detailed and balance investigation into this sordid incident.” And yet a further unsolicited excuse – “After all there is no time limit for the exercise of the power vested on the A. G., or D.P.P., to prosecute, although one would expect such power to be exercised within a reasonable time. The learned Chief Judge dismissed the application for leave.Not satisfied, Chief Ganf Fawehinmi appealed to the Court of Appeal. PAGE| 36 There, after full arguments based on well got-up briefs by both sides, a very powerful and considered judgment was delivered by the Court, per Nnaemeka-Agu, J.C.A. (as he then was). The issues for determination by the Court of Appeal were three fold- (1) Whether the appellant had made out a prima-facie case to entitle him to the leave sought from the High Court. (2) Whether the learned Chief Judge was right in law in dismissing the Appellant’s ex-parte application. (3) Whether the Appellant has locus standi. Nnaemeka-Agu, J.C.A. (as he then was) dealt first, as he should have done, with the issue of locus standi. He examined the position thoroughly and relied upon the decision of this Court in Senator Abraham Adesanya v. President of the Federal Republic of Nigeria & Anor. (1981) 1 All NLR.1.He concluded on this issue (and my Lords, because of the importance and logic in the judgment, I have to apologise for quoting exhaustively from that judgement) – “The result of all I have just said is that the locus standi of the appellant must have to be examined and decided in the light of section 6(6)(b) of the 1979 Constitution. He can only have a locus if the matter involves a determination of his civil rights and obligations. In this country the result of all the cases is that the common law concept that a person who has a locus and can sue is only one who has legal right, or whose legal right has been adversely affected or who has suffered or is in imminent danger of suffering an injury, – damage, or detriment personal to himself. This is the result of all the decided cases, including: Adesanya’ case (supra); Thomas & Ors. v. Olufosoye (1986) 1 N.W.L.R. 699; Attorney-General Kaduna State v. Hassan (1985) 2 N.W.L.R. 488 and Gamioba 11 v. Esezi (1961) All N.L.R. 584. Indeed the definition of mandamus in section 18(5) of the High Court Law of Lagos State contemplates the existence of such personal and private interest before the order can issue. It provides as follows: “5. For the purpose of this section “mandamus” means the order of mandamus made in action, commanding the fulfillment by a person of a quasi-public duty in which another person has a personal and private interest.” Such personal and private interest has not been shown. It is clear that neither the fact that the appellant was a friend and counsel for the deceased, as he deposed to in his affidavit in support, nor the fact that he is seeking to be a private prosecutor if the respondent takes action under section 342 of the Criminal Procedure Law, for what I have said, is sufficient to give him a locus standi. PAGE| 37 For this reason, I should strike out the appeal on the ground that the appellant has no locus standi.” He then examined the other issues. He held – “Although at that stage what is being sought is not the order of mandamus itself but leave to apply for it, the court cannot ignore the fact that in the end H the application for the order is made its grant must have to be discretional: See R. v. All Saints, Wigan 1 App. Gas 611, p.620; See also Commissioner for Local Government Lands & Settlement v. Kaderbhai (1931) A.C. 652, 660; also The Queen v. Minister of Lands & Survey (ex parte The Bank of the North) (1963) 2 All N.L.R. 126. As it Is so, the court ought to be satisfied that there have been placed before it by the applicant for leave some materials in the affidavit and the statement which, if not answered by the respondent when and if leave is granted, will result in the making of the order of mandamus.” He held further, after a consideration of a welter of authorities, that “ “on these principles, it would be wrong to say that the function of the learned C.J. at that stage was merely to be satisfied about compliance with the rules.” On whether the learned Chief Judge was right or wrong on the exercise of his discretion, Nnaemeka-Agu, J.C.A., (as he then was), added – “Now, I have read the ruling of the learned C.J. over and over again.It appears tome that he refused to grant leave to the appellant on only one ground, that is that the respondent had not refused to do his duty under Section 342 of the C.P.L. and that the circumstances of the case were such that he could not be forced to do so on the limited materials before him. The learned C.J. relied on two cases cited in the English and Empire Digest Vol. 15, paragraph 1021 and 1046, namely R. v. Champman (1985) 4 L.T.O.S. 332 and R. v. Great Western Canal Co. 91837, 1 Jnr. 53. The points outlined above from the appellant’s argument were merely the reasons why the learned C.J. reached his decision. PAGE| 38 I believe that the learned C.J. was right. For the general rule is that before the applicant is entitled to the order, he must have addressed a direct, distinct and specific demand or request to the respondent to do a duty imposed upon him by law and the respondent must have unequivocally, either expressly or by necessary implication, manifested his refusal not to comply.” On the facts of this case added the learned Justice of the Court of Appeal” there was neither an express refusal, nor a delay or persistent temporizing and failure to give an answer that could by any stretch amount to a refusal. On the facts placed before the court, the deceased was killed, in the circumstances I have mentioned, on the 19th October, 1986. As mentioned, by the C.J. Police investigations began and no report had been made to the respondent to enable him decide whether or not he would prosecute anybody for the crime. On the 3rd of November, that is 15 days after the death of the deceased, the appellant submitted to the respondent his request for him to state whether he would prosecute the offenders, and if he would not to so signify. Three days later, that is on the 6th November, 1986, the appellant required the respondent to give an answer, and the latter answered that he could not yet come to a decision whether or not to prosecute the persons named as suspects in the letter of request at public instance. I am of the clear view that there is nothing in the above facts that could be described as inordinate delay or persistent temporizing and refusal to give a direct answer. In saying so, I must take cognizance – as indeed taken by the learned C.J. himself – that the primary and solemn duty of public prosecutions in the matter is that conferred upon the Attorney-General of Lagos State (with other law officers in his Ministry) by section 191 of the Constitution. The right of a private prosecutor to prosecute under section 342 of the Criminal Procedure Act is completely subordinated to the duty, function and right of the Attorney-General in that behalf. This point is underscored by the powers conferred upon him to, at any stage of the proceedings, take over and continue any such prosecution, including one commenced by a private prosecutor. As it is so and in view of the guarantee of personal liberty in the Constitution, the decision to prosecute must be a serious and solemn function, which the Honourable Attorney ought not allow himself to be stamped into.” The Court of Appeal for these reasons struck out the appeal on the ground of locus standi and in the alternative, dismissed it as lacking in merit. Idris Kutigi, J.C.A. concurred with this judgment and so did Owolabi Kolawole, J.C.A. There is a further appeal to this Court on grounds already set down in the lead judgment of my learned brother Obaseki, J.S.C. and I need not repeat them. PAGE| 39 This Court has the benefit of excellent briefs from learned counsel and in particular, the brief filed by the Appellant, Chief Gani Fawehinmi, is a model of what briefs to this Court should be, and for this, I must commend him. The Appellant indicated three issues for the determination of this Court. They are – “(1) Whether the Appellant has a locus standi (2) Whether the Appellant has established a prima facie case entitling him to leave to apply for mandamus, and (3) Whether the Court of Appeal considered and determined the merits of the substantive application for mandamus on the consideration of the Ex parte Application for leave and If so whether, the approach of the Court of Appeal was wrong?” The Respondent adopted these issues and I am in agreement with both parties that the issues, as indicated, have clearly identified all that we have to deal with in this appeal. On locus standi, Appellant relied on the decisions on this Court in Abraham Adesanya v. President of Nigeria (1981) 2 N.C.L.R. 358, as per Bello J.S.C. (as he then was) at 385; Thomas v. Olufosoye (1986) 1 N.W.L.R. 669 as per Obaseki, J.S.C.: Attorney-General of Kaduna State v. Hassan (1985) 2 N.W.L.R. 483; Orogan v. Soremekun (1986) 5 N.W.L.R. 601. Appellant submitted, following the decisions aforesaid, that it is the cause of action that has to be examined in ascertaining whether there is or not locus standi, and the cause of action herein is the private prosecution of the accused persons. Section 191(1) of the Constitution of the Federal Republic envisages institution of criminal proceedings by any person other than the Attorney- General and that he submitted, would include a private prosecutor. This, he further submitted, gives a private prosecutor a locus standi to bring this application. The Appellant then examined the provisions of the Criminal Procedure Law-which gives power of arrest to any person in regard to commission of indictable offence. He submitted, firstly, on the point” PAGE| 40 “It is therefore my first submission that the cause of action in the application for leave to apply for mandamus is the very right of the Appellant to demand from the Respondent whether or not he will prosecute the accused persons and if he would not prosecute the accused persons then to endorse a certificate to the effect that he has seen the information lodged with him by the Appellant and declines to prosecute at the public instance. It is when he has taken that decision and indicated such decision in the special manner provided in Section 342 of the Criminal Procedure Law of Lagos State that the Registrar of the High Court would then receive the information against AKILU AND TOGUN for murder of Mr. DELE GIWA.” In regard to whether or not he made a prima facie case, Chief Fawehinmi contended that in an application for an order of mandamus, the Court is not at that stage concerned with the strength or merits of the substantive application. He argued further that he had satisfied the requirements of the law and that he is entitled to the leave sought once he has compiled with applicable Rules of Court of procedure. To pause here for a moment, If I understand the Applicant properly, he is in effect saying that the application for leave, once filed in accordance with the laid down procedure, in Order 53 of the High Court of Lagos (Civil Procedure) Rules 1972, the Court grants it as a matter of course. With respect, I cannot accept this submission. There is no valid procedure of law that makes a Court of law a mere rubber stamp. A Judge is certainly not a robot, nor an automaton, who once he is fed with data, produces an automatic answer. In every action before the Court, in every step taken by a Judge, his discretion is called into play, whether in interpreting the law or in deciding an action one way or the other. If it is otherwise, giving effect to the rule of law would amount to dexterity in manipulating data which are to be fed into the machine called judex. It is with this background that I would examine, even at this stage, the pronouncement of Adeloye, J. (as he then was) in Ondo State Broadcasting Corporation & Ors. v. Ondo State House of Assembly & Ors. (1985) 6 N.C.L.R. 333 a case relied upon by Chief Fawehinmi. In that case, the application (not for mandamus or any of the so called prerogative orders) was brought under Fundamental Rights (Enforcement Procedure) Rules 1979, seeking leave to apply for declaration against the Respondents and to restrain them from an infringement of applicants constitutional rights inured within Chapter 4 of the Constitution for their protection. An affidavit was attached to the applicant, which affidavit verified the facts relied upon by the Applicant. PAGE| 41 Adeloye, J. said – ‘There could not have been any difficulty at all in granting the application herein, namely for leave to apply for the declaration sought against the respondents. Granting leave in my opinion merely involves giving notice of the complaints of the applicants, as contained at paragraphs 1 -5 of the application to the respondents and asking the latter for their own explanation. The naughty point and, I must say, the only point that demands thorough scrutiny before this court can make up its mind one way or the other is the application for an order of Injunction on the respondents before the court hears their own side of the story. The rule of ‘audi alteram partem” is as old as the law itself. It is an indispensable requirement of justice that the Judge who has to decide shall hear both sides, giving each an opportunity of hearing what is urged against them. This injunction is necessary lest a man is condemned unheard or without having an opportunity of being heard. This requirement of an impartial judge is expressed by Lord Loreburn in the Board of Education v. Rice (1911) AC p.179 at p.182 as:“giving an opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view.,. Fascinating and challenging as these obligations on a Judge may seem the special provisions of the Fundamental Rights (Enforcement Procedure) Rules 1979 allows for the application for leave to redress a breach of Rights to be made to court without notice to the person or authority alleged encroaching on the rights of the applicant. The rule goes further to provide, at Order 1 Rule 2(b): “that leave to proceed against the alleged erring authority or party may be granted by court and the leave so granted, if the court or Judge so directs, shall operate as a stay of all actions or matter relating to, or connected with or until the court or Judge otherwise orders.” It is trite law that where the court or Judge is given the discretion to make or refrain from making an order such discretion must be used judicially.” It is clear from this ruling of Adeloye J. (as he then was) that he was dealing with a special circumstance, to wit rules provided under the Fundamental Rights (Enforcement Procedure) Rules 1979 which he said allowed ‘for the application for leave to redress a breach of Rights to be made to court without notice to the person or authority alleged encroaching on the rights of the applicants.” Even then, the learned Judge was much aware of the duty of a Judge who is given discretion to make or refrain from making an order. He is to exercise the discretion judicially. It is not automatic. Really, what should be stressed is the nature of evidence before the Judge. If the evidence is one sided and is strong enough to warrant granting leave he exercises his discretion that wise. PAGE| 42 I will examine the facts supplied by the Appellant in this case, yet uncontroverted, later, but meanwhile I will proceed with the submissions of the Appellant. Chief Fawehinmi submitted that where the power vested in a public officer is to act ministerially, as opposed to judicially, then although the public officer has a discretion in exercising the power, he however has a legal duty to exercise the power one way or the other. I do not think the learned Solicitor-General’s submission runs counter to this submission. Indeed he said nothing about it. Probably, rightly, for I am of the firm view that the proposition of law is correct, having regard to our decision in Shitta-Bey v. The Federal Public Service Commission [1981] 1 SC.40. One of most important points made by the Appellant was by way of comment on the judgment of the learned Chief Justice Candide Johnson, C.J. He said that a private prosecutor has no legal obligation to rely on police investigation before he could proceed to prosecute. I agree. Indeed, the police need not co- operate with him. It may even be a case which the police would not wish to investigate as a matter of policy. That is why the Attorney-General has power under S.191 of the Constitution to discontinue, even at any stage before judgment is delivered, any criminal proceedings which has been instituted by himself or any other person or authority. I will now turn to the submissions of the learned Solicitor- General. On Locus Standi, learned Solicitor-General also relied upon our decision in the Adesanya case (supra). And turning to sections 342 and 343 of the Criminal Procedural Law of Lagos State, he submitted that the private person envisaged by those sections, “is a private person whose Legal right has been infringed and who also has a personal private interest in the case.” This he reinforced with section 68(5) of the High Court Law (Cap. 52) Laws of Lagos State which provides – “The order of mandamus made in a section commanding the fulfillment by a person of a quasi public duty in which another person has a personal and private interest.” PAGE| 43 Being a lawyer of and friend of Dele Giwa, learned Solicitor-General submitted, could not be construed in whatever form, to be a personal and private interest. Even at this stage, I must say, with all respect to the Solicitor-General, that I find it difficult to follow his logic in this regard.I should have thought that a friend of a person simpliciter should have a personal and private interest in that person. A lawyer of that person may have only professional interest but when that lawyer is a personal friend I would not know what friendship stands for, if the friend would have no personal interest (after all he is a personal friend) or private interest (after all he has a friend because he could not really befriend the public at large) in that person. If anything, I think and it looks a bit elementary, that If the provision of section 342 of the Criminal Procedure Law is examined thoroughly, that provision goes beyond the stern provisions of section 6(6)(b) of the Constitution which vests judicial powers in the Court and extends the powers to “all matters between persons for the determination of any question as to the civil rights and obligations of that person” Personal and private interest in a matter, transcends the civil rights and obligations of a person, at least as has been determined by this Court in previous suits. Bello, J.S.C. (as he then was) in the Adesanya case (supra) speaking for the Supreme Court limited it to – “When the civil rights and obligations of the person, who invokes the jurisdiction of the Court are in issue for determination. Obaseki, J.S.C. in Thomas v. Olufosoye (supra) in trying to extend the scope still limited it to – “extend to all matters between persons or between government or authority and any person in Nigeria…… For the determination of any question as to the civil rights and obligations of that person.” My Lords, the issue of locus standi has always been held as one of the utmost importance, by this Court for in effect, it is one that delimits the jurisdiction of the Court, for in the interpretation of the Constitution, it is to be hoped that the Courts would not possess acquisitive instinct and ganner more jurisdiction than has been ascribed to It by the organic law of the land. It is this I think that has inhibited your Lordships, and rightly too, in being careful, as your Lordships should be, in threading carefully on the soil of locus standi. PAGE| 44 That is well and good. I hold the view, with utmost respect that as the Court has been made, by the Constitution itself, to be the guardian of that Constitution – (The judicial powers of the Federation shall be vested in the courts to which this section 6(1) of the Constitution) the Court has a constitutional responsibility, also legal and sociological, to interpret the provisions of the Constitution in the light of the socio- economic and cultural background of the people of this country. For it is for those people’s background that the Constitution is fashioned. Certainly, with respect, my Lords, this must be a major part of the functions of this Court. At all times though, care must be taken, not to constitute the judicial arm of government into a legislative body, but then, in a Federal system, there could be little fear of this for there are checks and balances, and when the Judiciary exceeds its mandate, both the Executive and the Legislative are there to check it. A painful experience is in the E.O. Lakanmi & Kikelomo Ola v. The Attorney-General (Western State) & Ors. U.I. Law Reports 1971 Vol.1. What I am now urguing is therefore an extension of what I had respectfully urged (in regard to Fundamental rights) in Ariori v. Elemo (1983) 1 S.C.L.R. 1 when I said: ‘The Courts in this country, especially this Court, being a court of last resort have a duty to safeguard fundamental rights.” The extension should be from fundamental rights to the Constitution generally and criminal law. My reason in the Arlorl v. Elemo case for broad interpretation was “I, having regard to the nascence of our Constitution, the comparable educational backwardness, the socio-economic and cultural background of the people of this country and the reliance that is being placed and necessarily have to be placed as a result of this background on the courts, and finally, the general atmosphere in the country.” In this instant appeal before this Court, I think, with respect, that the lead judgment of my learned brother Obaseki, J.S.C. is an advancement on the position hitherto held by this Court on “locus standi.” I think, again with respect, that it is a departure from the former narrow attitude of this Court in the Abraham Adesanya case and subsequent decisions, for strictly speaking, my Lord Nnaemeka-Agu, J.C.A. (as he then was) who no doubt was bound by those decisions at that time was right in his interpretation of the stand of this Court, and, so, strictly on those authorities of this Court, along, his judgment with respect, could not be faulted when he said – PAGE| 45 “In this country the result of all the cases is that the common law concept that a person who has a locus and can sue is only one who has a legal right, or whose legal right has been adversely affected or who has suffered, or is in imminent danger of suffering an injury-damage, or detriment personal to himself. This is the result of all decided cases including Adesanya’s case (supra), Thomas v. Olufosoye (1986) 1 N.W.L.R. 669, Attorney-General Kaduna State v. Hassan (1985) 2 N.W.L.R. 433 and Gamioba 11 v. Esezi (1961) All N.C.R. 584.” My humble view, and this Court should accept it as such, is that the present decision of my learned brother, Obaseki, J.S.C., in this appeal has gone beyond the Abraham Adesanya’s case. I am in complete agreement with the new trend, and with respect, my agreement with the judgment is my belief that it has gone beyond the Abraham Adesanya case. It Is the view of my learned brother Obaseki, which I fully share with respect, that “it is the universal concept that all human beings are brothers and assets to one another’. He applies this to ground locus stand! That we are all brothers is more so in this country where the socio-cultural concept of “family” and “extended family’ transcend all barriers. Is it not right then for the court to take note of the concept of the loose use of the word “brother’ in this country? “brother’ in the Nigerian context is completely different from the blood brother of the English language. Though Cain challenged the locus standi of his being questioned as to the whereabouts of his brother, Abel, it was his reason that he was not his brother’s keeper. That might have been in the outskirts of the garden of Eden. In Nigeria, it would be an unacceptable phenomenon. And when it Games to the law of crime, everyone is certainly his brother’s keeper. When the issue is as regards the observance of the organic law – that sacred document, which Sir Udo Udoma in Rabiu Nafiu v. The State (1980) 8 11 S.C. 130 urged, should constantly be borne in mind by the Court as a fact that it has been proclaimed “supreme law of the land” – “written organic instrument meant to serve not only the present generation but also several generations yet unborn.” should be observed in the light of one Nigerian being his brother’s keeper. PAGE| 46 To justify my statement in Ariori v. Elemo (supra) that this country is just having an experiment in democracy, the present situation of just trying the local government election after twenty seven years of independence as a prelude to return to civil (not self) rule bears loud testimony. After all, law does not exist in vacuo. The Constitution exists for Nigerians who are just having an experiment in democracy. A Constitution is not an academic document meant for abstract consideration. It is a revelation of the Social Contract made by people of a particular nation for those people with full realization of the peculiar background of those people. It is with all these in mind that I do not think one should lightly or summarily dismiss the profound reasoning of Nnaemeka- Agu, J.C.A. (as he then was) in this case without explanation or acknowledgment. The learned Justice of the Court of Appeal to my mind, only followed precedents, and that he did in good discipline of the law and the system. I, with respect, however disagree with his decision given for the Court of Appeal on this issue of locus standi for the reasons I have given and not that he did not apply correctly our earlier decisions. As I have said, I accept our present decision as a happy development and advancement on what, with utmost respect to your Lordships, I have always considered a narrow path being trodden thereto by the Court on locus standi. Dr. S.M. Thio is sometimes referred to as a judicial anarchist. I do not believe in judicial anarchy but I agree with the part of his thesis where he questioned. “The problem of locus standi in public law is very much intertwined with the concept of the role of the judiciary on the process of government. Is the judicial function primarily aimed at preserving legal order by confining the legislative and executive organs of government within their powers in the interest of the public (jurisdiction de droit objectify, or is it mainly directed towards the protection of private individuals’ rights (jurisdiction de droit subjectif).” PAGE| 47 Nnaemeka-Agu, J.C.A. (as he then was) referred to this and said (of course with the constraints of the earlier decisions of this court) – “It is this public interest and zeal that complicate the problem of courts in such a case (such as the instant case). Yet what the justice courts are bound and have sworn to administer is justice according to law, completely devoid of bias or sentiment.” I agree that neither bias nor sentiment should filter into justice. Indeed, once that happens, it ceases to be justice, yet the interpretation placed by the courts, once it is non-biased, non-sentimental – should be broad enough to bring out the true essence of justice according to law. A narrow interpretation, straight-jacketed on the fear of a Judge not being a legislator, into the confines of words which might even be equivocal, is, with respect, a negation of the true essence of justice. I agree the Appellant has locus standi and will now examine the other issue as to whether sufficient material was brought before the court to ground the granting of the leave sought. I do not intend to add much to what my learned brother Obaseki, J.S.C. has said on this point. I am in agreement with his reasoning. For leave, the Court of first instance needs material upon which to exercise its discretion. That is why a bold application without more will never suffice. But then, it does not have to give reasons for the Respondent why the Respondent failed to comply with the provisions of the law!. Candide Johnson, C.J. said that neither the Attorney-General nor the D.P.P. should be rushed in the great and complex assignment to prosecute or not to prosecute. He said that the police has a duty to conduct a detailed investigation into a crime, submit the report of such investigation to the Attorney-General. I agree this is what is needed for the public duty imposed upon the Attorney-General under S.191(1)(a) of the Constitution – to institute and to undertake criminal proceedings against any one. He needs the investigation under paragraph (b) to take over any prosecution, including one by a private prosecutor of this type; under paragraph (c); to discontinue one already instituted, even by a private prosecution. But then, that is in regard to his power under the Constitution which Constitution also envisages prosecution by persons, other than the Attorney-General. The legislation, Section 342 of the Criminal Procedure Law Lagos State, stipulates the procedure for the private prosecutor. What does he need? 1 have already set down all that. All the connection the private prosecutor has with the law officer is that the officer endorses the information, which is to be filed by the private prosecutor, to the effect that he the law officer declines to prosecute at the public instance. PAGE| 48 But what did the learned Chief Judge say? That material is one sided. In such situation, the D.P.P. could defer the exercise of his discretionary power. That was a reason the learned Chief Judge ascribed to the D.P.P. It was not what the D.P.P. had said. There is certainly no evidence to that effect. Certainly, if that was his excuse he could have endorsed the information to that effect. He has to comply with the law which is that after seeing the information he endorses it. Then the learned Chief Judge said there was no time limit for the exercise of the D.P.P.’s or Attorney-General’s discretion. But that argument was never put up by the D.P.P. He never said he needed time to decide. What he said was that he had not decided. The Chief Judge next considered the uniqueness of the death of Dele Giwa. But that would not permit him to hold that the time permitted for the exercise of the discretion of the D.P.P. was reasonable except the D.P.P. gave that excuse. With respect the learned Chief Judge had no right to put up a case for the D.P.P. As for the Court of Appeal the Court held that there was not an express refusal. With respect one could not justifiably hide under this cloak. An express reaction is what the law requires. The Court further said there was no delay or persistent temporizing. As I have already said the Respondents gave no such reason and the Court could not manufacture one for them. Learned Solicitor-General submitted dramatically – “It will be sad day in this country, if anybody is allowed to bring any spurious criminal charge against a fellow citizen without proper investigation” But the private prosecutor said he had investigated! He attached proof of evidence! It is for the Court and not the learned Solicitor-General to decide upon the sufficiency of evidence or that the evidence available is spurious. The important thing here is that there was some evidence before the Court to seek leave. This is the stage that has been reached. It is when leave has been granted and before the order is made that all these points which the Court of first instance and the Court of Appeal have canvassed on behalf of the Respondents would be examined and only in the true tradition of audi alteram partem if such points are raised by the Respondents. The order would then be made or refused upon such evidence. PAGE| 49 At the moment, leave is sought, no reason has been adduced by way of evidence by the Respondents. The scale must tilt in favour of little against nothing in the exercise of the discretion of the Court. I will therefore allow the appeal. I abide by all the orders contained in the lead judgment just read by my learned brother Obaseki, J.S.C. NNAMANI, J.S.C.: I had a preview in draft of the judgment just delivered by my learned brother, Obaseki, J.S.C. I agree with his reasoning and conclusions. Because of the constitutional importance of the issues canvassed in this appeal, I feel obliged to add a few comments of my own. The application which culminated in the appeal to this Court arose from the tragic circumstances surrounding the death in 1986 of Mr. Dele Giwa. The appellant, who in a supporting 14 paragraph affidavit deposed that he is – “(1) a citizen of Nigeria and a Legal Practitioner and that (2) Mr. DELE GIWA, Male, NIGERIAN of 25, Talabi Street Ikeja was my client and friend before his death.” on 7th November, 1986 filed an Originating Motion Ex-parte for “An order for leave to apply for an order of Mandamus compelling Mr. J.A. Oduneye, Director of Public Prosecutions, Lagos State to Exercise his discretion, whether or not to prosecute Colonel Halilu Akilu and Lt. Col. A.K. Togun for the murder of Mr. Dele Giwa and if he declines to prosecute to endorse Certificate to that effect on the Information submitted to him by the Applicant on Monday, the 3rd day of November, 1986, Pursuant to Section 342(A) of the Criminal Procedure Law, Cap.32, Laws of Lagos State, 1973.” As hitherto mentioned, that motion was supported by a 14 paragraph affidavit, a statement and 2 grounds for the application. Although he conceded that the applicant had locus standi to bring the applicant, the learned Chief Justice of Lagos State, Candide Johnson, C.J. dismissed it holding in effect that the materials supplied by the applicant were insufficient to entitle him to the leave sought. In the learned C.J.’s view, “it is necessary to remind ourselves that an A.G. or D.P.P. or any other officer of the A.G.’s department in exercising the power conferred in Section 191 of the Constitution performs a quasi-judicial function. In carrying out this great and complex assignment the A-G. or D.P.P. or any member of the staff so delegated, is not expected to act on any rule of thumb, he is not expected to be rushed or stampeded into a decision. PAGE| 50 The decision reached is expected to be product of a solid and mature judgment taking account of of the provision of Section 191(3) of the Constitution besides the evidence available to it. How then do we construe the statement credited to the D.P.P.? Has he refused to prosecute or has he merely deferred his decision? I have myself had the privilege of going through the materials submitted to the D.P.P. and made available to the Court. I must say it appears one sided as nothing is there to show what the account of the proposed suspects are to provide a balanced view of the accusation. If therefore in that situation the D.P.P. defers the exercise of his discretionary power, he would in my considered view appear to have exercised that discretion judiciously. Refusal is not the same as deferment.” The appellant appealed to the Court of Appeal, Nnaemeka-Agu, J.C.A. as he then was, Kutigi and Kolawole, (J.J.C.A.) which dismissed the appeal holding first, that the appellant had no locus standi and second that he had not made out a prima facie case. After dealing with the issue of locus standi, Nnaemeka-Agu, J.C.A. (as he then was) also considered the merits of the application and concluded as follows:- “I believe that the learned C.J. was right. For the general rule is that before the applicant is entitled to the order, he must have addressed a direct, distinct and specific demand or request to the respondent to do a duty imposed upon him by law and the respondent must have unequivocally, either expressly or by necessary implication manifested his refusal not to comply ……. Although inordinate delay in complying with a demand or request may sometimes be treated as a refusal, it is not every delay that may be so treated. But on the facts of this case there was neither an express refusal, nor a delay or a persistent temporising and failure to give an answer that could by any stretch amount to a refusal. I am of the clear view that there is nothing in the above facts that could be described as inordinate delay or persistent temporising and refusal to give a direct answer.” The appellant has appealed to this Court. The nature of his complaint can be vividly seen in grounds 1 and 5 of the grounds of appeal to the Court of Appeal and Ground 5 to this Court. They read:- The learned trial Judge erred in law in refusing the ex-parte application. Particulars of Error (a) it was clear that a prima facie case for the grant of leave was made out by the applicant. (b) The Court at this stage should not be concerned with the totality of the strength or merits of the substantive application. ………………………. PAGE| 51 (5) The learned trial Judge erred in law in determining the entire application for Mandamus while determining the application for leave as the Court should not be concerned with the strength or merits of the substantive application for Mandamus at this stage” and to this Court. “5. The learned Justices of Court of Appeal erred in law in considering the determining the merits of the substantive application for Mandamus (yet to be filed) instead of restricting themselves to the consideration of the Ex Parte Application for leave to Apply for Mandamus which was the matter before the Court…….” These complaints are set down in the 3 issues set down by the appellant as issues for determination in this appeal. Two of these issues are:- “1. Whether the Appellant has a locus standi. 2. Whether the Appellant has established a prima facie case entitling him to leave to apply for mandamus” Locus standi or standing as it is generally referred has to do with title to sue or capacity to sue, as Bello, J.S.C. (as he then was) defined it in Senator Adesanya v President of Nigeria (1981) 2 N.C.L.R. 358 380, “the right of a party to appear and be heard on the question before the Court or Tribunal” In that case, this Court in relation to this question of “standing” held as follows- “1. A person who seeks a remedy in a Court of Law in Nigeria against an unconstitutional act must show that he is directly affected by that act before he can be heard. 2. A general interest common to all members of the public is not a litigable interest to accord standing in a Court of Law. 3. There must be an assertion of a right by such a person peculiar or personal to him and that right must have been infringed or that there is a threat of such infringement. PAGE| 52 It is clear that the judicial powers vested in the courts by Section 6(6)(b) of the 1979 Constitution can only be invoked in a proper case of justiciable actions brought before them in which there is dispute, controversy and in which the parties have sufficient interest. Section 6(6)(b) of the Constitution provides that – “6(6)(b). The Judicial power vested in accordance with the foregoing provisions of this Section (particularly Section 1) (b) Shall extend to all matters between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto for the determination of any question as to the civil rights and obligations of that person” I expressed the opinion in the Adesanya case which I still hold that this Section – “encompasses the full extent of the judicial powers vested in the Courts by the Constitution. Under it, the Courts have power to adjudicate on a justiciable issue touching on the rights and obligations of the person who brings the complaint to Court. The litigant must show that the act of which he complains affects rights and obligations peculiar or personal to him. He must show that his private rights have been infringed or injured or that there is a threat of such infringement or injury.” The Adesanya case has been followed by several cases by the Court. These include: Attorney-General, Kaduna State Vs. Hassan (1985) 2 N.W.L.R. Pt.8483; Thomas Vs. Olufosoye (1986) 1 N.W.LR. (Part 18) 669, 684 and Orogan Vs. Soremekun (1986) 5 N.W.L.R. (pt. 44) 688, 700. It is therefore understandable that an applicant even for leave has to have locus standi to bring the application. It is clear that all the cases in which this Court has considered the issue of locus standi have been civil causes. In determining therefore whether the appellant herein has locus standi it is necessary to consider the nature of the cause he brought to court – in other words what was the cause of action? Chief Gani Fawehinmi, appellant herein, in his submissions in this Court contended that the cause of action here “is private prosecution of the accused persons and the right of the appellant as a private person to prosecute them” I am unable to agree that strictly speaking this is the cause of action in this case. Dealing with the same issue, the Court of Appeal after reviewing several authorities concluded that – PAGE| 53 “What determines whether the proceedings are civil or criminal is not the fact that the ultimate intention of the application is that if the order of mandamus issues it will compel the respondent to take a step which will enable the appellant to prosecute a murder charge. What ought to be regarded on the authorities is the fact that the application itself is not a criminal proceedings. It is a civil matter.” Further, the Court of Appeal went on – “I am, therefore, satisfied that as nobody is yet an accused person in the present proceedings the application for leave to apply for mandamus is a civil cause or matter.” This Court has at least in two decisions adverted to this issue of what a cause of action is. In Thomas Vs. Olufosoye (Supra) Obaseki, J.S.C. quoted with approval the definition in the English Supreme Court Practice Volume 1 page 161 15/1/2A which is as follows: 1. “The words ‘cause of action’ comprise every fact (though not every piece of evidence) which it would be necessary for the plaintiff to prove, if traversed to support his right to the judgment of the Court (See Read v Brown (1882) 22 Q.B.D. 128 per Lord Esher, MR 131). 2. The phrase comprises every fact which is material to be proved to enable the plaintiff to succeed (See Cooke v Gill (1873) L.R. 8 CP.107, per Brett, J. at 108). 3. The words have been defined as meaning “simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person” (per Diplock, L.J. in Letang Vs. Cooper (1965) 1 O.B. 222 at 242). 4. In Ireland these words have been held to mean the subject matter or grievance founding the action, not merely the technical cause of action (O’Keefe v Welsh (1903) 2 Ir Rp. 718).” In Egbe v Adefarasin (1987) 1 N.W.LR. 1, 20 Oputa, J.S.C. said that the words “can safely be defined as the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief.” Earl Joroitt’s Dictionary of English Law, 1st Edition also defines cause of action as ‘the fact or combination of facts which give rise to a right to sue.” PAGE| 54 It is not arguable that an application for leave to apply for mandamus is a civil proceeding, but I think that having regard to the nature of the application in the instant case, one cannot exclude the fact that the ultimate purpose of the exercise is to compel the D.P.P. to decline or not to initiate criminal proceedings. The subject matter or grievance which led to the action i.e. the application is certainly the inability of the Director of Public Prosecutions to exercise his discretion one way or the other under Section 342(a) of the Criminal Procedure Law of Lagos State to initiate criminal proceedings against the persons being charged by the appellant. This intrusion of the criminal law into what would have been simply a civil proceeding is, in my view, a matter which has to be taken into account in determining this issue of standing. Section 12 and 342(a), 343 of the Criminal Procedure Law, Cap.32 Laws of Lagos State 1973, Section 130 of the Criminal Code, Cap.31 Laws of Lagos State and Section 191 of the 1979 Constitution of Nigeria provide as follows: “Section 12. Any private person may arrest any person in the Lagos State who in his view commits an indictable offence, or whom he reasonably suspects of having committed an offence which is a felony or having committed by night an offence which is a misdemeanor” Section 342: The Registrar shall receive an information from a private person if – (a) it has endorsed thereon a certificate by a law officer to the effect that he has seen such information and declines to prosecute at the public instance the offence therein set forth; and ……………….. Section 343: Where any private person has complied with the provisions of Section 342 the information shall be signed by such person and not by a law officer, or other person designated by the State Commissioner as aforesaid and such person shall be entitled to prosecute the information………………………………………… PAGE| 55 Section 130 Criminal Code: Any person who, having arrested another upon a charge of an offence, wilfully delays to take him before a court to be dealt with according to law is guilty of misdemeanour. Section 191 of the Constitution: (1) The Attorney-General of a State shall have power – (a) …………………………. (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 the judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person” These provisions contain clear and unequivocal statutory rights which in Lagos State have been given to any person not only to apprehend a felon but, subject to certain conditions, to initiate criminal proceedings against him. A duty is by the very nature of our organised society imposed on every citizen to ensure that all criminals are brought to book. The statutory right which has been given to every person in Lagos State to initiate criminal proceedings against any suspect felon, in my view, raises an obligation which falls within the purview of Section 6(6)(b) of the Constitution. It is my view that in these matters which are so interlined with the criminal law, our interpretation of Section 6(6)(b) of the Constitution must be approached with a true liberal spirit in the interest of Society at large. The appellant has locus as any person to make the application he has brought to court, and if all other conditions are fulfilled, to initiate criminal proceedings. He also has an obligation which the courts must determine and protect. In the circumstances of this case, can it be seriously argued that the appellant is not on a higher pedestal than any person to whom the law has given locus in the wider interests of society? From the affidavit filed, the deceased was in his lifetime his friend and client. He had from the papers in this case 2 days to his death retained the appellant’s professional services in relation to certain matters. PAGE| 56 In the Hassan case (supra) this Court granted locus to a father. I think, however, that consanguinity ought not to be the only acceptable ground for granting locus. The situation is not dissimilar to habeas corpus applications where a friend or a legal practitioner can be instructed to bring proceedings in favour of a prisoner See R v Carrel (1931) 1 K.B. 317 at 352 C.A. Nevertheless, I must not be understood to subscribe to the notion of “throwing the gates wide open” even in this area of the law, for no one would want busybodies to sprout all around us. A dose of controlled liberalism would do no harm,for unlike the situation in purely civil proceedings, there are here considerable checks and balances. Even if a private person is allowed to initiate criminal proceedings under Section 342(a) of the Criminal Procedure Law of Lagos State, no information can actually be preferred unless a Judge of the High Court so orders under section 340(2)(b) of the same Criminal Procedure Law. More important is the safeguard provided by Section 191(1)(b) and (c) of the 1979 Constitution under which Attorney-General of a State can at any stage take over or discontinue any criminal proceedings commenced by any person. The second question was whether the appellant had made out a prima facie case to entitle him to the leave he is seeking. As earlier indicated, both the High Court and the Court of Appeal were of the view that the appellant did not make out a prima facie case. I would say with respect, as I had earlier shown, that the two lower courts almost all through considered matters which ought to be taken when, if the appellant obtains leave, the actual application for an order of mandamus is heard. On the issue of prima facie case, the Court of Appeal said – “As it is so, the Court ought to be satisfied that there have been placed before it by the applicant for leave some materials in the affidavit and statement which, rf not answered by the respondent when and if leave is granted, will result in the making of the order of mandamus” With all respect that is indeed the standard which an applicant has to attain under section 340(2)(b) of the Criminal Procedure Law set out above. PAGE| 57 In Ikomi Vs State (1986) 3 N.W.L.R. 340 this Court considering the materials sufficient to establish a prima facie case under Section 340(2)(b) of the Criminal Procedure Law of Bendel State stated at p.366 – The question is, in all the circumstances, can ft be justly said that there is nothing linking the appellants with the offence? I hold that there was a prima facie case on the face of those proofs of evidence. Although Queen Vs Ogucha (1959) 4. F.S.C. 64, 65 dealt with the status of evidence at the close of the prosecution’s case, I am of the view that as in that case all that is required at the point when a Judge grants consent to prefer information is that there be evidence which requires some explanation” Surely the evidence required here which is just an application for leave ex-pane must be much lighter. All that is needed is just some evidence which makes it necessary for the Director of Public Prosecutions to come to Court and give reasons for his refusal to comply with Section 342(a) of the Criminal Procedure Law. In my view too, the appellant has reached the required standard on the issue of prima facie case by complying with the requirements of Section 342(a) of the Criminal Procedure Law. It is also clear that the Director of Public Prosecutions has seen the application. In all these circumstances, I think that this appeal must succeed and I do allow it. I hereby set aside the judgments of the High Court of Lagos State and the Court of Appeal Lagos Judicial Division and endorse all other orders made by Obaseki, J.S.C. UWAIS, J.S.C.: I have had the advantage of reading in draft the judgment read by my learned brother Obaseki, J.S.C. I agree that this appeal has merit and that It should succeed. The history of this case began with the death of a journalist called Dele Giwa. The death was caused by a letter bomb sent to him on the 19th day of October, 1986. The appellant suspected the 1st and 2nd accused persons of committing the murder and therefore decided to institute a private prosecution against them. By the provisions of section 342 and 343 of the Criminal Procedure Law, Cap.32, (Volume 2 of the Laws of Lagos State of Nigeria, 1973) a private person, as opposed to the Attorney- General of Lagos State, may, on compliance with the provisions of the sections bring a private prosecution. The sections read thus – “342. The registrar (of the High Court or Magistrate’s Court of Lagos State) shall receive an information from a private person if – PAGE| 58 (a) it has endorsed thereon a certificate by a law officer to the effect that he has seen such information and declines to prosecute at the public instance the offence therein set forth; and (b) such private person has entered into a recognisance in the sum of one hundred naira, together with one surety to be approved by the registrar in the like sum, to prosecute the said information to conclusion at the times at which the accused shall be required to appear and to pay such costs as may be ordered by the Court, or, in lieu of entering into such recognisance shall have deposited one hundred naira in court to abide the same conditions. 343. Where any private person has complied with the provisions of section 342 the information shall be signed by such person and not by a law officer, or other person designated by the State Commissioner (that is State Attorney-General) as aforesaid and such person shall be entitled to prosecute the information, but nothing in this section shall be construed so as to exclude the provisions of section 8 of the Lagos State (Interim Provisions) Decree, 1968. (Now Section 191) of the Constitution of the Federal Republic of Nigeria, 1979 which deals with the powers of the Attorney-General of a State with regard to public prosecutions).” (Parenthesis mine). Now the appellant being desirous of complying, with these provisions submitted on 3rd November, 1986, to the respondent a 2 count information (charging the suspects with murder), together with proofs of evidence with a request for certification by the respondent in accordance with section 342 (a) of the Criminal Procedure Law, Cap.32. After 3 days, that is by the 6th November, 1986, the appellant called on the respondent to obtain the certificate in question. The respondent said, orally, ‘that he could not come to a decision whether or not to prosecute the accused persons at public instance” as per the information and proofs of evidence submitted by the appellant. Nothing in writing was given to the appellant by the respondent as a reply to the request for the certificate. The appellant therefore decided to bring in the High Court of Lagos State before Johnson, C. J. an ex-parte application for mandamus to compel the respondent to issue a certificate to him pursuant to section 342(a) of the Criminal Procedure Law, Cap. 32. In his ruling, Johnson, C. J. dismissed the ex-parte application. The appellant appealed against the dismissal to the Court of Appeal. In the latter court, the issue of locus standi was raised by the respondent and the Court of Appeal held that the appellant had no standing to bring a private prosecution against the suspects for the murder of the deceased. In addition the Court of Appeal confirmed the dismissal of the ex-parte application by Johnson C. J. PAGE| 59 In appealing to this Court, 3 issues were formulated in the appellant’s brief of argument for our determination. They are- “(1) Whether the appellant has a locus standi (2) Whether the appellant has established a prima facie case entitling him to (sic) leave to apply for mandamus, and (3) Whether the Court of Appeal considered and determined the merits of the substantive application for mandamus on the consideration of the ex-pane application for leave and ff so whether the approach of the Court of Appeal was wrong?” A. Locus Standi The locus classicus on locus standi is the decision of this Court in Adesanya v. President of Nigeria, (1981) 2 N.C.LR. 358 which was based on the interpretation of section 6 subsection (6) (b) of the Constitution of the Federal Republic of Nigeria, 1979, which states – “(6) The judicial powers vested in accordance with the foregoing provisions of this section. (b) shall extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;” Briefly, Adesanya’s case laid down the principle that a plaintiff will have locus standi once he can show that his “civil rights and obligations” have been, are being or are about to be violated. The principle had since been followed by this Court in a number of cases including A. G. of Kaduna State v. Hassan, (1985) 2 N. W.L.R. 483, Thomas v. Olutosoye, (1986) 1 N.W.L.R. 669 and Orogan v. Soremekun, (1986 5 N.W.L.R. 688. In the present case, as already seen, the appellant has the right under section 342 read together with Section 343 of the Criminal Procedure Law, Cap 32, to bring private prosecution if the Attorney-General of Lagos State has given his fiat. The respondent as a law officer acting on behalf of the Attorney- General failed to decide within 3 days whether to give the sanction or not. In other words, he took no action at all. But he has a duty under section 342(a) of the Criminal Procedure Law, Cap.32 to indicate that he declines to prosecute the information submitted by the appellant. There can be no doubt therefore that the respondent in failing to take any decision one way or the other could be said to have prima facie acted in such a way that the private right or “obligation” of the appellant to bring private prosecution was put in jeopardy by him. PAGE| 60 In my view the Court of appeal was in error when it held that the appellant had no locus standi to bring the ex-pane application for mandamus before Johnson, C.J. There can be no doubt that by sections 342 and 343 of the Criminal Procedure Law, Cap.32 every citizen of Nigeria or any person for that matter, has a right to bring private prosecution in Lagos State ff the Attorney-General of Lagos State does not wish to do so. B. Ex – parte Application for Mandamus The power of the High Court of Lagos State to grant mandamus is derived from the provisions of sections 18 subsection (1) and 19 subsections (2) and (3) of the High Court Law. Cap.52, (Volume III of the Laws of Lagos State of Nigeria 1973). Subsections (2) and (3) of Section 19 read – “(2) The High Court shall have all the jurisdiction of the High Court of Justice in England to make an order of mandamus requiring any act to be done………………. (3) The power conferred. by this .Section .to .make an order of mandamus …… may be exercised notwithstanding that the order is made against the officer or authority of the Lagos State as such.” By Order 53 rule 1(1) of the High Court of Lagos State (Civil Procedure) Rules, Cap. 52 no application for an order of mandamus can be made unless leave to do so is granted. The manner of making the application for the leave to be granted in prescribed by Order 53 rule (2) which provides – “(2) An application for such leave as aforesaid shall be made ex-parte to the Court, ………. and shall be accompanied by a statement setting out the name and prescription of the applicant, the relief sought and facts relied on. The Court or Judge in Chambers may in granting leave, impose such terms as to costs and as to giving security as it or he thinks fit.” PAGE| 61 “It appears to me important to appreciate that the need to endorse any certificate (for or against private prosecution) would only arise when a decision has been taken one way or the other. Here as it appears no decision has yet been taken. It is necessary to remind ourselves that an A.-G. or D.P.P. or any other officer of the A.-G.’s department in exercising the power conferred in section 191 of the Constitution performs a quasi-judicial function. The known procedure is for the Police who has a public duty so to do to conduct a detailed investigation into a crime committed and submit the report of such investigation to the Attorney-General or any of his officers to enable them consider and decide on the merit of the report so as to determine the justification for undertaking a prosecution or declining to. It is conceded that in the appropriate circumstances the report of investigation by a private prosecutor may be useful. In carrying out this great and complex assignment, the A.-G. or D.P.P. or any member of the staff so delegated, is not expected to act on any rule of thumb, he is not expected to be the product of a solid and mature judgment taking account of the provision of section 191(3) of the Constitution besides the evidence available to it. How do we construe the statement credited to the D.P. P.? I have myself had the privilege of going through the material submitted to the D.P.P. and made available to the Court. I must say it appears one sided as nothing is there to show what the account of the proposed suspects are, to provide a balanced view of the accusation. If therefore in that situation the D.P.P. defers the exercise of his discretionary power, he would in my considered view appear to have exercised that discretion judiciously. Refusal is not the same as deferment. It is an applicant on a refusal that qualifies to apply, not an applicant whose request is deferred.After all there is not (sic) time limit for the exercise of the power vested on the A-G. or D.P.P. to prosecute, although one would expect such power to be exercised within a reasonable time. Even If one considers the reasonableness of time, I would say that the incident that gave birth to the death of the late Dele Giwa is not only unique in its form, but also complex and would require sufficient time to conduct detailed and balanced investigation, a report on which the appropriate authority could reasonably act. It appears impulsive without giving reasonable time and chance for a detailed and balanced Investigation into this sordid incident. In the circumstances and having regard to the review made above it is my ruling that this (ex-pane) application is misconceived and it is therefore dismissed. Leave to apply for Mandamus is hereby refused.” (italics ours) PAGE| 62 The question that follows is: was it necessary for the learned Chief Judge to advert his mind to all the issues he considered in the foregoing when dealing with an ex-pane application for mandamus? The procedure for applying for mandamus falls into two stages. The first stage consists of an application ex-parse under Order 53 rule 1 of the High Court of Lagos State (Civil Procedure) Rules, Cap.52. The ex-pane application must, inter afa, be accompanied by an affidavit giving all the facts on which the applicant intends to rely in the second stage for the application for mandamus after leave had been given. At the time the ex-pane application is being made the respondent does not take part, so that the judge hearing the ex-parse application has before him only material supplied by the applicant. The applicant is of course required to present true facts before the judge. In other words uberrima fides is required. Leave will not be granted if there is deliberate misrepresentation or concealment of material facts in applicant’s affidavit. See R. v. Kensington l. T. C., (1917) 1 K.B. 486 and R. v. Stevens, (1956) C.L.Y. 2160; The Times October 26, 1956. It seems to me the purpose of the ex-parte application is to determine preliminary matters such as whether prima facie a ground exists on which it can be assumed that the applicant’s right has been violated and as such it is necessary to put the prospective respondent on notice so that the court, after hearing both sides to the dispute, can consider in detail the complaint of the applicant. It is not, therefore, necessary or proper for the court to comprehensively examine the applicant’s complaint at the first stage in order to decide whether to grant the ex-pane application. A mere suspicion or inkling that a dispute or controversy exists is enough for the judge to grant the ex-pane application. It is sufficient also it the judge is satisfied that the application – ex-parse is not frivolous, vexatious or an abuse of the process of the Court. Appellant, relying on Ondo State Broadcasting Corporation & Ors. v. Ondo State House of Assembly & Ors., (1985) 6 N. C.LR. 333 at pp. 334 and 337, has submitted that once an application ex-pane has satisfied the requirements of the High Court of Lagos State (Civil Procedure) Rules, Cap 52, then the applicant is, without more, entitled to the leave sought to bring applicatiaocn for mandamus. I am in view of what I have said earlier, unable to accept the submission. If this were to be the case useless applications could be made for mandamus merely to annoy public officers or authority in abuse of the process of court; and Courts, in which the applications are brought, would be powerless to stop such abuse and annoyance. PAGE| 63 The danger potential in considering an ex-pane application exhaustively can be seen in the excerpt from the ruling of Johnson, C. J., quoted above in extensor. The applicant filed the ex-pane application and deposed, inter alia, that the respondent In this appeal failed after 3 days to decide whether or not to grant a certificate for the private prosecution by the appellant to take place. There was no reason given by the respondent for his procrastination other than that he had not made up his mind; yet learned Chief Judge, with respect, went on an excursion of his own to provide multiple reasons why the respondent needed time and why he could not take a decision as to what to do with the appellant’s application to bring private prosecution. All the excuses, for the respondent’s failure to take decision, raised and considered by learned Chief Judge concern matters to be thrashed out and determined at the second stage of the application for mandamus, in accordance with Order 53 rules 3 to 5 of the High Court of Lagos (Civil Procedure) Rules Cap.52. That is after leave had been obtained in the ex-parte application. The learned Justices of the Court of Appeal fell into the same error by considering in full the merit of the applicant’s complaint and inter alia holding (per Nnaemeka-Agu, J.C.A. as he then was) thus – “But on the facts of this case there was neither an express refusal, not a delay or persistent temporising and failure to give an answer that could by any stretch (of imagination) amount to refusal.” With respect these are matters that went to the substantive application for mandamus under Order 53 rules 3 to 5. They could only be considered at the second stage and not at the first stage where only primary requirements need be satisfied. If all the issues between the parties were to be considered at the first stage, the determination would be one-sided since the prospective respondent was not before the Court and he made no representations. In that case the prospective respondent could never be a party in or be answerable to a substantive application for mandamus because the decision necessary in the matter would have been taken by the court during the first stage. That, in my opinion, would certainly give rise to absurdity and would defeat the purpose and intendment of Order 53 rule 1 (1) and (2) of the High Court of Lagos State (Civil Procedure) Rules, Cap.52. PAGE| 64 I will allow the appeal for the foregoing reasons. The decisions of the High Court and the Court of Appeal are hereby set-aside. In their place, I grant the application ex-parte for mandamus with N300.00 costs to the appellant. Following the grant of leave in the application ex-parte, the appellant is at liberty to file the substantive application for mandamus in the High Court of Lagos State. The case is remitted to the High Court to be heard by a judge other than Johnson, C.J. WALI,J.S.C.: I have had the privilege of reading in advance, a copy of the judgment of my learned brother Obaseki, J.S.C., with which I agree. The brief facts of the incident can be stated as follows: On Sunday 19th October 1986, at No. 25 Talabi Street, Ikeja, one Dele Giwa, a journalist by profession was killed through a letter bomb allegedly sent to him by Colonel Halilu Akilu – Director of Military Intelligence and Lt. Colonel A. K. Togun -Deputy Director of State Security Service. The appellant, in the person of Chief Gani Fawehinmi who deposed to the fact that he is a citizen of Nigeria and that late Dele Giwa, until his death was his client and friend, conducted private investigation leading to the circumstances in which Dele Giwa was killed as a result of which he prepared a two count Information charging both Colonel Halllu Akilu and Lt. Colonel A.K. Togun with conspiracy to murder and the murder of the said Dele Giwa. Chief Fawehinmi submitted on Monday 3rd November 1086 to Mr. J. A. Oduneye, the Director of Public Prosecutions Lagos State, the Information supported by proof of evidence obtained through the appellant’s private investigation for the learned Director of Public Prosecutions’ certificate under section 342(a) of the Criminal Procedure Law Cap. 32, Laws of Lagos State to enable him apply to the Lagos State High Court for leave to institute private criminal prosecution against the two suspects named in the Information charge for the offences allegedly said to have been committed by them. Then on 6th November 1986, that is barely three days after the Information supported by the proof of evidence was submitted to the learned Director of Public Prosecutions, the appellant went back to him to obtain the certificate stipulated in section 342(a) of the Criminal Procedure Law, but the Director of Public Prosecution told him orally that with the proof of evidence submitted and without he himself carrying his own investigation coupled with the acute shortage of time afforded him by the appellant in the given circumstances, he could not come to a decision whether or not to prosecute the suspects at public instance. As a result of this conduct of the Director of Public Prosecutions, the appellant filed an Originating Motion Ex- parte in the Lagos High Court pursuant to the provisions of – PAGE| 65 1. Section 342(a) Criminal Procedure Law Cap. 32 Laws of Lagos State, 1973. 2. Order 53(1)(1) of the High Court of Lagos (Civil Procedure) Rules, 1972. 3. Order 53 Rule 3 Sub-Rules of the Supreme Court, 1985 (England) 4. The Inherent Jurisdiction as preserved by sections 6(6)(a) of the Constitution of the Federal Republic of Nigeria, 1979; for leave to apply for an order of Mandamus compelling the Director of Public Prosecutions to exercise his discretion whether or not to prosecute the two suspects for the alleged offences contained in the Information, and if he declines to do so, to endorse a Certificate to that effect on the Information submitted to him. The learned Chief Judge of the Lagos High Court considered the ex-parte application and came to the following conclusions viz-a-viz the issues raised therein – 1. “I must say that I concede to him the right to apply as he did and do not consider it necessary to examine that issue (of locus stands) in detail.” (words in bracket supplied by me) 2. “How then do we construe the statement credited to the D.P.P? Has he refused to prosecute or has he merely deferred his decision? I have myself had the privilege of going through the materials submitted to the D.P.P. and made available to the Court. I must say ft appears one sided as nothing is there to show what the account of the proposed suspects are to provide a balanced view of the accusation. If therefore in that situation the D.P.P. defers the exercise of his discretionary powers he would in my considered view appear to have exercised that discretion judiciously. Refusal is not the same as deferment.” 3. “Even if one considers the reasonableness of time, I would say that the incident that gave birth to the death of the late Dele Giwa is not only unique in its form, but also complex and would require sufficient time to conduct detailed and balanced investigation, a report on which the appropriate authority could reasonably act. The timing here appears hasty and premature. It appears impulsive without giving reasonable time and chance for a detailed and balanced investigation into this sordid incident.” PAGE| 66 With those findings the learned Chief Judge described the application as misconceived and dismissed it. Not satisfied with the Ruling, the appellant appealed to the Court of Appeal. In that Court briefs of arguments were filed by both the appellant and the learned Director of Public Prosecutions. The briefs were further elaborated by oral submissions. In a reserved judgment delivered by Nnaemeka-Agu J.C.A. (as he then was) with which both Kutigi and Kolawole, JJ.C.A., agreed, the learned Justice considered all the issues raised and argued, and concluded – “It has been well said that “hasty justice is as injurious to the society as delay of justice …….. But for all I have said I would strike out the appeal on the ground that the appellant has no locus stand/. In the alternative I would dismiss the appeal on the ground that the appeal fails, as lacking merit.” The appellant still not satisfied by the decision, has now appealed to this Court. He filed several grounds of appeal supported by a well prepared and articulated brief of arguments. The Respondent also filed brief. They both made oral submissions in further clarification of the issues raised in the briefs. As contained on pages 3 – 4 of the appellant’s brief, I agree with him that the decisive issues in this appeal are – “1. Whether the appellant has locus standi.” “2. Whether the appellant has established a prima facie case entitling him the leave to apply for mandamus, and “3. Whether the Court of Appeal considered and determined the merits of the substantive application for mandamus on consideration of the Ex parte Application for leave and if so whether the approach of the Court of Appeal was wrong.” My learned brother Obaseki, J.S.C., has reviewed the submissions made on these issues and arrived at the conclusion with which I agree. The application before the trial Court though civil in form, but quasi criminal in nature, seeks the permission and sanction of the Court to initiate private prosecution. The law is very clear on this point. See Section 75(1) of Criminal Procedure Law of Lagos State. PAGE| 67 Section 77 of the Criminal Procedure Law of Lagos State states some of the methods by which the criminal proceedings can be commenced in either the Magistrate Court or the High Court, depending on the offence committed and the jurisdiction of the court before which k can be prosecuted; while section 12 deals with the right of a private citizen to arrest any person whom he saw committing or suspected of having committed a criminal offence. The right for a private citizen to initiate criminal proceedings against person or persons mentioned in section 12 manifests itself in sections 75, 342, 343 of the Criminal Procedure law and section 130 of Criminal Code Law. These provisions in my view are supported by the provisions of section 6(2) and (5)(a) and (b) of the 1979 Constitution and also section 19(1)(b) and (c) of the same Constitution. The cause of action in this case is not in doubt; it is the death of Dele Giwa. In the celebrated case of Adesanya v. President of Nigeria (1981) 2 N.C.L.R. 358 and 393, Obaseki, J.S.C., said – “It is the cause of action that one has to examine to ascertain whether there is disclosed a locus standi or standing to sue.” I venture to say that the appellant’s locus standi in this matter has been stated and conferred by the provisions of the laws referred to (supra). The other point which I would like to touch upon is the statement or conduct of the learned Director of Public Prosecutions when the Information containing the proposed charges and supported by the proof of evidence was submitted to him by the appellant. The verbal reply credited to have been given by the Director of Public Prosecutions to the appellant that the time allowed him was too short for him to either reply that he would prosecute the case at public expense or sign a certificate to enable the appellant to bring an application before the high Court for leave to file the Information, is in my view, a refusal to exercise his discretion. A refusal to exercise discretion may be conveyed not only by express words but also by conduct such as postponing or adjourning consideration of the matter in a manner that is tantamount to a refusal to decide it. The brief of arguments filed by the Respondent in this appeal dealing with this issue goes to support this. Part of the argument reads: PAGE| 68 “It is not unusual for the Director of Public Prosecutions to ask for more information from the police before he could come to a rational decision as to whether to prosecute or not to prosecute. In this present case, the respondent did not refuse to prosecute but said he has not made up his mind. This I submit with respect is not a refusal to prosecute. The appellant was over anxious to embark upon a private prosecution and he gave reason which I have stated earlier why the state should not prosecute.” What is implied from the Director of Public Prosecutions’ conduct in the extract (supra), is nothing short of adjournment sine die. Where a public officer, like the Director of Public Prosecutions is placed under a ministerial duty to perform a specified act where the prescribed conditions are satisfied, mandamus will issue to compel him to perform that act. The reasons given by the learned trial Chief Judge and the Court of Appeal for dismissing the application of the appellant as well as the arguments of the Director of Public Prosecutions both before the Court of Appeal and this Court, are matters that may be relied upon when considering the application for leave to file the Information. They are not relevant for the consideration of the present application. It is for these and the comprehensive reasons given by my learned brother, Obaseki, J.S.C., that I too will and do hereby allow the appeal. I endorse all the orders contained in the lead judgment including that of costs. CRAIG, J.S.C. (Dissenting): I have had a preview of the Judgment of my learned brother Obaseki, J.S.C. and I agree with the facts as set out by him. I also agree with him that the two main issues involved in this appeal are: 1. Whether the applicant has a locus standi to institute the proceedings in the court of first instance; and 2. Whether he has made out a prima facie case entitling him to an order for leave to apply for an order of mandamus or, in other words, How much should an applicant for an order of mandamus disclose at the ex-parte stage before the court grants him leave? In regard to the first issue, I agree entirely with my learned brother and for the reasons so clearly set out in the lead judgment that the appellant did have a locus standi in bringing the action. My Lords, the question of locus standi has received judicial consideration in many cases which have come before this court; and the applicant has referred us to the following, amongst others: Adesanya v. The President of Nigeria, 1981 2 NCLR. 338 Attorney-General of Kaduna v. Hassan (1985)2 NWLR. p.483 Irene Thomas v. Bishop Olufosoye (1986) NWLR. 669 Orogan v. Soremekun (1986) 5 NWLR. 688 at p.700 Egbe v. Adefarasin (1981) 1 NWLR. page 1 at p. 20 PAGE| 69 In all these cases the ratio decidendi is this that when a man comes to court and prays the court to look into a dispute between him and any person, or body, he must show a legal interest entitling him to ask for the intervention of the court.In the celebrated case of Senator Adesanya v. The President supra, Idigbe J.S.C. at page 387 declared: “The type of case or controversy which will justify the exercise of the court of its judicial power must be justiciable and based on a bona fide assertion of right by the litigant (or one of them) before it.” All these authorities relate to civil matters and are not difficult to comprehend. The novel issue on this appeal is concerned with the legal interest which a private prosecutor must possess before he can commence proceedings. The question therefore, is, what legal interest has the applicant got either in prosecuting suspected criminals or in asking for leave to compel the D.P.P. to permit him to undertake the prosecution? Chief Gani Fawehinmi claims that the late Dele Giwa was his personal friend and client and that he has a personal interest to prosecute persons suspected to have killed him. I suppose one must recognise this as some form of “interest,” but one may as well ask – how close should this friendship be? and would it be sufficient if the victim of the crime were just a neighbour or political associate? These and other similar questions are bound to agitate the mind of any objective enquirer and R is for this reason that the Court has to exercise some caution before giving a stamp of legality to this type of interest lest one flings open the door to busy-bodies and do-gooders who might want to exploit the slightest relationship to harass and/or embarrass innocent citizens. PAGE| 70 However, in the instant case, the applicant has shown that he has statutory right to prosecute the suspected offenders. He referred us to section 340(1) of the Criminal Procedure Law of Lagos state which provides as follows- “340 (1) Subject to the provisions of this section an information charging any person with an indictable offence may be preferred by any person before the high Court charging any person with an indictable offence for which that person may lawfully be indicted, and wherever an information has been so preferred the registrar shall, if he is satisfied that the requirements of the next following section have been complied with, file the information and it shall thereupon be proceeded with accordingly:” When that section is read in conjunction with sections 342 and 343 of the same Law, ft will be seen that the Laws of Lagos State permit a private prosecutor to initiate prosecution for an indictable offence. I may here mention that sections 59(1), 77 and 81 also provide the same rights for a private prosecutor who may wish to commence similar criminal proceedings in the Magistrate’s Courts. It has been stated that the proceedings in the lower court were civil in nature and that the applicant still had to show his locus standi in applying for an order of mandamus. My view is that if a private prosecutor has a statutory right to initiate criminal proceedings in Court, it becomes part of his civil rights and obligations under section 6, sub-section 6(b) of the Constitution of Federal Republic of Nigeria 1979, and he has the right to protect and enforce such civil rights by any legal process which he thinks appropriate. Indeed if such prosecutor thinks that another person (in this case, the D.P.P.) is trying to prevent him from exercising his statutory right to prosecute, he may bring appropriate proceedings to remove the impediment. In the instant case, the applicant has applied to the High Court for leave to apply for an order of mandamus to compel the D.P.P. to perform his public duty so that he could proceed to prosecute the suspected felons and I am of the view that he has every right so to do. it is for these reasons as well as for those stated in the lead judgment that I agree that the applicant has a locus standi to bring the present application. I now come to the second issue as to whether the applicant has made out a prima facie case entitling him to an order for leave to apply for an order of mandamus. I have already stated that under section 340(1) of the Criminal Procedure Law, a private person is permitted to take up the prosecution of an indictable offence. In my view, this section as well as others like it, preserves the universal approach to crimes: it recognises that a crime is an offence against society and any member of that society should be free not only to apprehend a criminal – see Section 12, but also to prosecute him on behalf of the rest of the public. PAGE| 71 However, in order to prevent an abuse of the powers given to private prosecutors, the law has provided some safeguards in the exercise of the power. Before a private prosecutor can commence proceedings, he must (1) Prepare an information charging the suspect with an indictable offence – sec. 340(1). (2) He shall then enter into a recognisance to prosecute the information to conclusion – Sec.342(b). (3) He shall next present the information to a Law Officer who shall endorse thereon a certificate to the effect that: “he has seen such information and declines to prosecute at the public instance the offence therein set forth.” – Sec. 342(a) (4) After this, he shall then present the papers on (2) and (3) above to the Registrar of the High Court, who shall file the same, if satisfied that the prosecutor has complied with the provisions of Sec. 342 of the Criminal Procedure Law – See Section 340(1). (5) If the Registrar refuses to file the information, the prosecutor may apply to a Judge, who shall direct the Registrar to file the information, if the Judge is satisfied that the provisions of Section 342 have been complied with. (6) In any case, no information charging any person with an indictable offence shall be preferred unless a Judge of the High Court gives his consent. PAGE| 72 As previously stated, these conditions have been imposed on private prosecutors in order to ensure that innocent citizens are not subjected to spurious prosecutions. However, in the circumstances narrated by the applicant in his affidavit in these case, he prayed the Court for: “An order for leave to apply for an order of mandamus compelling Mr. J.A. Oduneye, Director of Public Prosecutions, Lagos State to exercise his discretion whether or not to prosecute Col. Hafilu Akilu and Lt. Col. A.K. Togun for the murder of Mr. Dele Giwa and if he declines to prosecute, to endorse a certificate to that effect on the information submitted to him by the applicant on Monday, the 3rd day of November, 1986, pursuant to section 342(a) of the Criminal Procedure Law Cap. 32 Laws of Lagos State 1972.” That was the prayer which the applicant has placed before the Court and I have italized what I consider to be the important words. In support of that prayer, the applicant swore to a 14-paragraph affidavit, and because of its relevance to the point in issue, it is necessary to quote it in full: 1. “That I am a citizen of Nigeria and Legal Practitioner. 2. That Mr. Dele Giwa, Male Nigerian of 25 Talabi Street, Ikeja was my client and friend before his death. 3. That the said Mr. Dele Giwa was killed by a letter bomb on Sunday, 19th October, 1986 at his residence. 4. That after conducting a private investigation and upon the facts at my disposal I prepared a two count information charging:- 1. Colonel Halllu Akilu – Director of Military Intelligence; and 2. Lt. Colonel A.K. Togun – Deputy Director of the States Security Service. with the murder of the said Mr. Dele Giwa. 5. That on Monday, 3rd November, 1986 I submitted to Mr. J.A. Oduneye, the Director of Public Prosecutions, Lagos State, the said Information together with the proofs of evidence for his certificate under Section 342(a) of the Criminal Procedure Law of Lagos State. Copies of the Information together with all relevant documents including the proofs of evidence are annexed herewith and marked Exhibit GF. 6. That on Thursday, 6th November, 1986 I returned to the said Director of Public Prosecutions to obtain his certificate under Section 342(a) of the Criminal Procedure Law Cap. 32 Laws of Lagos State, 1973 but he told me orally that he could not come to a decision whether or not to prosecute the accused persons at public instance as per my Information and proof of evidence. 7. That further to paragraph 6 above, the said Director Public Prosecutions refused to give me his reply in a written form. PAGE| 73 8. That by the said failure of the Director of Public Prosecutions to exercise his discretion under Section 342(a) of the Criminal Procedure Law of Lagos State, it is impossible for me to apply for the consent of a Judge of the High Court of Lagos State to the preferment of the information against the accused persons. 9. That by the said failure of the Director of Public Prosecutions to exercise his discretion one way or the other, I do not know whether or not the accused persons will be prosecuted for the murder of Mr. Dele Giwa. 10. That further to paragraph 9 above, the accused persons have not been arrested by the Nigeria Police and they are still moving freely within Nigeria. 11. That if the said Director of Public Prosecutions endorses his certificate on the Information submitted to him by me that he has seen the Information but declines to prosecute the accused persons at public instance, I will prosecute the accused persons according to the Laws of Lagos State in particular and those of Nigeria in general. 12. That on the other hand if the said Director of Public Prosecutions decided to prosecute the accused persons, I will be prepared to assist the Prosecution by giving evidence and in any other lawful manner. 13. That I verily believe that unless the Director of Public Prosecutions exercises his discretion under Section 342(a) of the Criminal Procedure Law one way or the other, the accused persons will go untried. 14. That I swear to this affidavit in good faith.” The application came before the Chief Judge of Lagos State, and after hearing arguments, the learned Chief Judge in a well considered judgment ruled as follows: “To obtain a Court’s order for leave to apply for an order of mandamus, it appears that certain conditions must first be satisfied by the applicant. The English and Empire Digest Vol. 16 at page 324 paragraph 102 gives an example of such conditions when it states: 1021, – A special appln & refusal, are conditions precedent to a mandamus to compel the performance of a duty. No general declaration of the party not to perform the duty required supersedes the necessity of such application -R. v. Chapman (1845) 4 L.T.O.S. 332″ PAGE| 74 That the applicant as contained in his affidavit made special application is conceded. Has there been a refusal of the application? Let us ask what amounts to a refusal. Again the English & Empire Digest offers useful assistance when in paragraph 1045 at page 326 is states the general rule as follows:- “1045. General Rule – By an Act establishing a canal co., it was provided that certain landowners might call upon them by notice, as directed in the Act, to execute certain works communications with the co.’s canal and railways, and that if the co. should refuse for six months after such request, applicants, might themselves perform the work in the same manner as the co might have done them. An application, being made to come under this clause, they answer that they would go to the works themselves who were likely, H so disturbed, to bring an action. The company offered nevertheless to proceed if indemnified. Six months had at this time elapsed since the original application. The work not being done, a mandamus was applied for:- Held: The writ could not issue, it not appearing from the above facts that, after the consent given by the company to execute the works there had been any express demand & refusal of performance, or any conduct on the company’s part equivalent to such refusal. We cannot grant a mandamus unless there has been a direct refusal, & here I think there has not. It is not indeed necessary that the word refuse or any equivalent to it should be used, but there should be enough to show that the party witholds compliance, & distinctly determines not to do what is required (LORD DENMAN, CJ)” The futility of insisting on positive words of refusal is stated in paragraph 1046 of the said Digest as follows:- “1046.- It would be too much to fold the position words are necessary to constitute a refusal; the acts of the parties may be tantamount, but it should be shown that in effect there had been a refusal (Lord Denman, C.J.) R. v. Grand Western Canal Co. (1837) 1 Jur. 53.” Let us then examine the contents of the affidavit in support of this application which is the only material of the history of events leading to this application. The grounds on which this application is based the applicant himself did not apparently out of caution, use the word refusal in relation to the act of the D.P.P. complained about. PAGE| 75 It appears to me important to appreciate that the need to endorse any certificate would only arise when a decision has been taken one way or the other. Here as it appears, no decision has yet been taken. What in the contents of the affidavit available we may ask constitutes refusal to entitle the applicant to seek an order to compel the respondent D.P.P. to act? To this end paragraphs 4 to 6 appears pertinent and for purpose of emphasis I shall repeat them; “4. That after conducting a private investigation and upon the facts at my disposal I prepared a two count information charging – 1. ‘Colonel Halilu Akilu- Director of Military Intelligence; and 2. Lt. Colonel A. K. Togun- Deputy Director of States Security Services with the murder of the said Mr. Dele Giwa. 5. That on Monday, 3rd November, 1986 I submitted to Mr. J.A. Oduneye, the Director of Public Prosecutions Lagos State, the said information together with the proofs of evidence for his certificate under Section 342(a) of the Criminal Procedure Law of Lagos State. Copies of the Information together with all relevant documents including the proofs of evidence are annexed herewith and marked Exhibit GF. 6. That on Thursday, 6th November 1986 returned to the said Director Public Prosecutions to obtain his certificate under Section 342(a) of the Criminal Procedure Law Cap. 32 Laws of Lagos State, 1973 but he told me orally that he could not come to a decision whether or not to prosecute the accused persons at public instance as per my Information and proof of evidence.” PAGE| 76 Does the statement credited to the D.P.P in paragraph 6 constitute a refusal to prosecute? It is necessary to remind ourselves that an A.G. or D.P.P., or any other officer of the A.G.’s department in exercising the power conferred in Section 191 of the Constitution performs a quasi judicial function. The known procedure is for the Police who has a public duty so to do to conduct a detailed investigation into a crime committed and submit the report of such investigation to the Attorney-General or any of his officers to enable them consider and decide on the merit of the report so as to determine the justification for undertaking a prosecution or declining to. It is conceded that in appropriate circumstances the report of investigation by a private Prosecutor may be useful. In carrying out this great and complex assignment, the A.G. or D.P.P. or any member of the staff so delegated, is not expected to act on any rule of thumb, he is not expected to be rushed or stampeded into a decision. The decision reached is expected to be the product of a solid and mature judgment taking account of the provision of Section 191(3) of the Constitution besides the evidence available to it. How then do we construe the statement credited to the D.P.P.? Has he refused to prosecute or has he merely deferred his decision? I have myself had the privilege of going through the materials submitted to the D.P.P. and made available to the Court. I must say it appears one sided as nothing is there to show that the account of the proposed suspects are to provide a balanced view of the accusation. If therefore in that situation the D.P.P. defers the exercise of his discretionary power, he would in my considered view appear to have exercised that discretion judiciously. Refusal is not the same as Deferment. It is an applicant on a refusal that qualifies to apply, not an applicant whose request is deferred. After all there is no time limit for the exercise of the power vested on the A.G. or D.P.P. to prosecute, although one would expect such power to be exercised within a reasonable time. Even if one considers the reasonableness of time I would say that the incident that gave birth to the death of the late Dele Giwa is not only unique in its form, but also complex and would require sufficient time to conduct detailed and balanced investigation a report on which the appropriate authority could reasonably act. The timing here appears hasty and premature. It appears impulsive without giving a reasonable time and chance for a detailed and balanced investigation into this sordid incident. PAGE| 77 In the circumstances and having regard to the review made above it is my ruling that this application is misconceived and R is therefore dismissed. Leave to apply for an order of Mandamus is hereby refused.” The applicant was dissatisfied with the Ruling and appealed to the Court of Appeal. After a full hearing, the Court affirmed that ruling of the learned Chief Judge on the merits but on the Law It held that the applicant had no locus standi and proceeded to strike out the appeal. The issue relating to locus standi has been dealt with earlier on in this judgment and nothing more need be said about ft. With regard to the merits of the case, Chief Fawehinmi submitted that the two lower Courts erred in law to hold that the applicant had not made out a prima facie case. Counsel contended that once the applicant had showed that he had complied with the Rules of Court, applicable to an order of Mandamus, he was automatically entitled to have the order nisi made in his favour. The rules which Counsel had in mind are Order 53 rules 1(1)-(3) of the High Court of Lagos (Civil Procedure) Rules which prescribe the mode of bringing an application for any of the prerogative orders. I do not agree with the sweeping submissions made by Counsel. There is nothing in any Rule or Law which suggests that in such matters the Court should act automatically. Indeed it would be wrong to rubber-stamp whatever Counsel has placed before it. In all cases, the normal thing is for the Court to consider the facts presented to it, and in the exercise of its discretion, to grant the prayer or refuse it. In the case of Lasisi v. Registrar of Companies (1976) 7 S.C. 73 at p.92 this Court said of Mandamus:- “As a general rule the making of the order of Mandamus is a matter of the discretion of the Court.” In Commissioner for Local Government Lands & Settlement v. Kaderbhai (1931) A.C. 652 at 660, Lord Atkin aptly stated the general rule thus: “The writ of Mandamus, which is a high prerogative writ, is of the greatest value in maintaining the law, but it is discretionary.” This means that whether the Court is acting at the ex-pane stage or at the final stage when considering the merits of the application, it never divests itself of its discretionary powers, which like other judicial discretions, must be exercised according to common sense and according to justice. See Gardner v. Tay (1885) 29 Ch. D.50 at 58. PAGE| 78 In regard to the issue of prima facie case, Chief Fawehinmi has stated that a prima facie case is made when an applicant brings the application in the form required by Order 53 r. 1 of the Lagos High Court Rules, and shows due compliance with Section 342 of the Criminal Procedure Law. This is not quite right. In my view, a distinction should be made between making a prima facie case to the D.P.P. to enable him endorse the information under section 342 of the Criminal Procedure Law and making a prima facie case to the Court to enable the Court grant leave to apply for an order of Mandamus. In the first instance, when the applicant presents to a law officer all the documents (i.e. Information and Recognisance) required to be produced under section 342(a) and (b) of the Criminal Procedure Law, he has thereby made out a case and is entitled to demand that the Law Officer should endorse the Information as required by Law. But in the latter case, an applicant does not make out a prima facie case merely by presenting to the Court documents which he had tendered to the law Officer. To make out a prima facie case before the Court, the applicant should in my view, disclose in his affidavit sufficient facts which would make the Court want to hear the other side. The facts disclosed would of course depend on the peculiar nature of the application. But the Court remains the sole Judge of whether or not sufficient facts have been disclosed to warrant the other party being called upon. In all this, the Court is guided by its judicial discretion. Suppose for instance, a man applies for a writ of habeas corpus and alleges that he has been in prison custody for 24 months without being brought to Court for trial. On those facts alone, the Court should want to hear what the gaoler has to say about the detention. The gaoler may for instance, make a return which shows that the prisoner was being detained in pursuance of an emergency order (such as Decree No.4) in which case, the order nisi will be discharged. PAGE| 79 But where the applicant discloses facts which defeat the very purpose of the application, then he cannot expect the Court to grant him the order nisi automatically. For instance, if in the example above, the applicant for a habeas Corpus had himself disclosed that he was being held under a Decree which prevented the Court from investigating his detention, then he cannot insist that the other party should be heard nor can he complain if his application is struck out. Now let us examine the facts presented by the applicant, in this case. The contents of the affidavit have been quoted and there is no need to set them out again. He states that he has carried out some private investigations into murder of the late Dele Giwa and on the facts available to him, he has prepared an information and presented same to the D.P.P. for his certificate under section 342(a) of the Criminal Procedure Law. He took the information to the D.P.P. on 3rd November, 1986 and returned to collect it on Thursday 6th November, 1986. The D.P.P. informed the applicant orally that: “he could not come to a decision whether or not to prosecute the accused persons at public instance as per my Information and proof of evidence.” On the receipt of that reply from the D.P.P. The applicant applied ex-parte on 7/11/86 to the High Court for an order for leave to apply for an order of Mandamus. The Court after hearing arguments ruled that: (a) The applicant could not apply for an order of Mandamus unless there had been a refusal by the D.P.P. to perform his public duty. (b) That the reply of the D.P.P. did not amount to a refusal but a deferment of his decision.” The learned Chief Judge then went on to consider the powers of the D.P.P. under sec. 191 of the Constitution. He observed that in taking a decision whether to prosecute or not, the D.P.P. would need to consult the Police whose duty it is to carry out investigation into such crimes. In conclusion, the Court thought that the applicant had not given enough time to the D.P.P. and that his action was rather hasty. When the matter came before the Court of Appeal, that Court, in what I consider to be an excellent analysis of all the issues involved, confirmed the judgment of the High Court. This is part of what the Court (per Nnaemeka-Agu, J.C.A., as he then was) said:- PAGE| 80 “But on the facts of this case there was neither an express refusal, nor a delay or a persistent temporizing and failure to give an answer that could by any stretch amount to a refusal. On the facts placed before the court, the deceased was killed, in the circumstances I have mentioned, on the 19th of October, 1986. As mentioned by the C.J. Police investigations began and no report had been made to the respondent to enable him decide whether or not he would prosecute any body for the crime. On the 3rd of November, that is 15 days after the death of the deceased, the appellant submitted to the respondent his request for him to state whether he would prosecute the offenders, and if he would not to so signify. Three days later, that Is on the 6th November, 1986, the appellant required the respondent to give an answer, and the latter answered that he could not yet come to a decision whether or not to prosecute the persons named as suspect in the letter of request at public instance. I am of the clear view that there is nothing in the above facts that could be described as inordinate delay or persistent temporizing and refusal to give a direct answer. In saying so I must take cognisance – as indeed taken by the learned C.J. himself – that the primary and solemn duty of the public prosecutions in the matter is that conferred upon the Attorney-General of Lagos State with other law officers in his Ministry by section 191 of the Constitution. The right of a private prosecutor to prosecute under section 342 of the Criminal Procedure Act is completely subordinated to the duty, function and right of the Attorney- General in that behalf. This point is underscored by the powers conferred upon him to, at any stage of the proceedings, take over and continue any such prosecution, including one commenced by a private prosecutor. “he could not come to a decision whether or not to prosecute the accused persons at public’ expense as per my Information and proof of evidence.” That answer is capable of different interpretations and Chief Fawehinmi has put his own interpretation on it but another possible interpretation is that the D.P.P. could not make up his mind whether to prosecute on the materials given to him by the applicant or use those which have been made available (or are yet to be made available) the Police. Whatever it is, the D.P.P.’s reply is not a clear cut refusal. PAGE| 81 The learned Chief Judge has been criticised by Counsel for considering that fact that the D.P. P had to depend on the Police in coming to a decision; in my view, it a rather unfair criticism. In my opinion, it became necessary to consider that aspect of the case in view of the ambiguous nature of the answer which the D.P.P. was alleged to have given. It must be recalled that although the applicant had written to the D.P.P. asking him to endorse his Information, he did not waft for a written reply. He went back on the third day and was satisfied with an oral reply which is capable of a thousand Interpretations. I pause here for a moment to say that this is not the way that Government business is transacted nor is it a fair treatment to give to a Constitutional Officer of the rank of a D.P.P. One would expect that when such serious letter is addressed to the D.P.P on a matter of such enormous public importance, the applicant would want to have a considered reply from the D.P.P. No wonder the learned Chief Judge has stated that the applicant appeared to have acted rather impulsively. Perhaps it is necessary to state that the primary purpose of asking an applicant to ask for leave to apply for an order of Mandamus is to eliminate at an early stage any application which appears to be frivolous, incompetent or vexatious. Lord Diplock also thought that the requirement of leave is designed “to prevent the time of the Court being wasted by busybodies with misguided or trivial complaints of administrative errors …………… See R. v. Inland Revenue Commissioners, ex-parte National Federation of Self-Employed & Small Business Ltd. 1982 A.C. 617. Chief Gani Fawehinmi has also complained that the Chief Judge was wrong to comment on the fact that the applicant seemed to have wanted to “stampede” the D.P.P. into taking a hasty decision. Counsel complained that the Court was trying to put up a defence for the D.P. P who at the stage was not a party. Again, I am of the clear view that the Judge’s comments arose from the facts deposed to in the affidavit and it was within his rights to comment on any matter which was properly before him. Even as at now the applicant cannot say that it was altogether fair to have given the D.P.P. only three days to make up his mind on a crime of that magnitude. PAGE| 82 No doubt, all right-thinking citizens must feel incensed at such a callous and brutal murder of a fellow citizen; indeed, it becomes the duty of everybody to seek to identify the culprits and bring them to justice, but in doing so, one must be guided by caution and prudence. It is not difficult to understand the injured feelings of the applicant and other close friends of the deceased, but from the facts which have emanated from this application, one has come to appreciate the good sense of the Legislature in reposing In the hands of Public Officer the overall responsibility for the prosecution of all crimes. In conclusion, I hold that the applicant has failed to make out a prima facie case for leave to apply for an order of Mandamus and his application for such order is refused. In the result, the appeal fails and it is dismissed. I make no order as to costs.
COUNSELS
Appellant in person. For the Appelants.|J.A.Oduneye, Solicitor-General, Ministry of Justice, Lagos State (with him Mrs.O.Shoyemi-Alli Senior State Counsel) For the Respondent.|
