FEDERAL REPUBLIC OF NIGERIA v. ABUH DANIEL
(2015)LCN/7893(CA)
RATIO
POLICE: POWER TO PROSECUTE; THE POWER OF THE POLICE TO PROSECUTE AND UNDERTAKE CRIMINAL PROSECUTION SUBJECT TO THE EXERCISE OF POWERS CONFERRED ON ATTORNEY-GENERAL
In the case of OLUSEMO V. COP (1998) 11 NWLR (575) 547, 558, Kutiga, JCA, as he then was, stated: “In this instance the power to prosecute and undertake criminal prosecution is vested on the Police Officer under Section 23 of the Police Act subject to the exercise of powers conferred on the Attorney-General by the provision of Section 160 of the Constitution. It is very clear and without any doubt, that the Attorney – General of the Federation has not exercised his powers under Section 160 of the Constitution in the instant case. Therefore the police officer’s powers to prosecute in the criminal proceedings in the case are not limited, restricted or controlled”. See also COMPTROLLER, NIGERIA PRISONS SERVICE, IKOYI, LAGOS V. ADEKANYA (No. 1) (2002) 15 NWLR (790) 362. per. JOSEPH E. EKANEM, J.C.A.
POLICE: SECTION 3 (1) (F) (VI); WHETHER THE PROVISION OF SECTION 3 (1) (F) (VI) EXCLUDE THE POLICE FROM PROSECUTING OFFENCES UNDER IT
The trial court relied on Section 3 (1) (f) (vi) of the Nigeria Security and Civil Defence Corps Act to hold that the Police did not have the vires to institute the criminal proceedings. I respectfully do not agree with the trial court. In the first place, the wording of the provisions is clear and unambiguous and effect should be given to the provisions as doing so would not be absurd. See AWOLOWO V. SHAGARI (1979) 6-9 SC 51 and RABIU V. STATE (1980) 10 SC 1. Section 3 (1) (f) of the said Act provides inter alia that the Corps shall have the power to arrest, investigate and institute legal proceedings by or in the name of the Attorney-General in accordance with the provisions of the Constitution of Nigeria against any person who is reasonably suspected to have committed an offence under the Act. It does not give exclusive power in that regard to the Corps. In otherwords, it does not exclude the police from prosecuting for offences under it. To hold otherwise, as appears to have been the position of the trial court, would amount to reading into the provision words not found therein and without adequate grounds for doing so. See FEDERAL REPUBLIC OF NIGERIA V. OSAHON (2006) 138 LRCN 1575, 1640. More importantly, the power of the Police to undertake any criminal prosecution (including for offences under the Miscellaneous Offences Act or the Nigeria Security and Civil Defence Corps Act) is also traceable to or recognised by Sections 211 and 174 (1) (b) and (c) of the 1999 Constitution of Nigeria (as amended) by the expression “…any such criminal proceedings that may have been instituted by any other authority or person”. An “authority “is defined as “the people or an organization who have the power to make decisions or who have a particular area of responsibility in a country or region”. See OXFORD ADVANCED LEARNERS DICTIONARY 7TH ED PAGE 84. The Police are certainly an authority within the contemplation of Section 174 (1) (b) and (c) of the Constitution. See also Section 214 (1) of the Constitution of Nigeria 1999 (as amended) and Sections 3, 4, 23 and 24 of the Police Act. per. JOSEPH E. EKANEM, J.C.A.
POLICE: POWER OF THE POLICE TO PROSECUTE; WHETHER THE POWER OF THE POLICE TO PROSECUTE IS ROOTED IN THE CONSTITUTION, THE SCOPE OF THE POWER OF THE PROSECUTION TO PROSECUTE AND THE LIMITATION TO THIS POWER
It follows therefore that the power of the Police to prosecute traceable to or recognised by the constitution cannot be nibbled at or eroded by an Act of the National Assembly, viz; the Nigeria Security and Civil Defence Corps Act. This is because the Constitution is the grund norm and it is superior to all other laws. See Section 1 (1) of the Constitution. In the case of FEDERAL REPUBLIC OF NIGERIA V. OSAHON supra, the appellant charged the respondents with various offences under the Miscellaneous Offences Decree (Act) of 1984. The 1st – 8th respondents prayed for the charge to be quashed upon several grounds but mainly on the ground that the prosecutors were police officers and not officers of the Attorney- General of the Federation’s office. The Supreme Court discountenanced the position. Belgore, JSC, as he then was, stated at page 1605: “Police authority can by virtue of the aforementioned provision of Section 174 (1) of the Constitution prosecute any criminal suit either through its legal qualified officers or through any counsel they may engage for the purpose” (underlining is mine for emphasis). Kutigi, JSC, as he then was, stated: at page 1613 that; “…Any police officer has the power to conduct criminal proceedings before the Federal High Court. Mohammed, JSC stated that, “… This power of the police to prosecute the respondent before the Federal High Court is also traceable to the provision of the 1999 Constitution itself in Section 174(1)…” The power of the Police to prosecute therefore can only be limited or restricted by the Attorney – General. per. JOSEPH E. EKANEM, J.C.A.
In The Court of Appeal of Nigeria
On Tuesday, the 9th day of June, 2015
JOSEPH E. EKANEM, J.C.A. (Delivering the Leading Judgment): The appellant charged the respondent before the Federal High Court, Lokoja Judicial Division (“the trial court” for short) as follows:
“That you … On 19/3/2013 at about 10:00am at Ganaja Village in Lokoja Local Government Area of Kogi State without lawful authority or an appropriate license loaded one Big storex plastic tank containing some quantity of petroleum product suspected to be crude oil and one plastic bucket with some quantity of petroleum suspected to be crude oil inside your pick-up van QINQI with registration number KPA-77XA with intents to import, sell and distribute or otherwise and thereby committed an offence contrary to and punishable under Sections 17(a) and (b) Miscellaneous Offences Act, CAP M17 LFN 2004”.
The charge was signed by “T. E. OTEME ESQ O/C Legal and prosecutions the Nigerian Police State CID, Lokoja”.
On the 10/6/2013, the trial court suo motu raised an issue as to whether the Police have the power to prosecute cases of oil pipe-line vandalization and called for addresses from both sides. After taking the addresses, the trial court ruled as follows:
“I hold that upon the scrutiny of the provisions of Section 3(1) (f) (vi) of the NSCDC Act (as amended) it is the NSCDC that is given the express authority to investigate offence of oil pipeline vandalization and to initiate proceedings thereto on behalf of the Attorney – General of the Federation … This proceeding instituted by the Nigeria Police is therefore ultra vires the authority of the Nigeria Police and is therefore incompetent being that the prosecutor is not the competent person in law to initiate it”.
Dissatisfied with the ruling and order of the trial court striking out the case, and discharging the respondent, the appellant has appealed to this court by means of a notice of appeal bearing four grounds of appeal.
Out of the four grounds of appeal, the appellant in its brief of argument settled by Nwodibo Ekechukwu, Esq; decocted one issue for the determination of the appeal. The issue is as follows:
“Whether the learned trial judge was right when he struck out the appellant’s charge filed against the respondent and accordingly discharge (sic) him?”
(sic).
Inspite of being served with the processes of court including the appellant’s brief, the respondent did not respond. Consequently, this court on 21/10/2014 granted the appellant’s application for the appeal to be heard on the appellant’s brief of argument alone.
It must be mentioned that the failure of the respondent to file a brief does not mean that the appeal will automatically succeed. This is because the appellant must succeed on the strength of his appeal and not on the failure of the respondent to file a brief. See UNITY BANK PLC V. BOUARI (2008) 7 NWLR (1086) 372, 403.
Counsel for the appellant C. I. Okpoko, Esq (Assistant Director, Federal Ministry of Justice) adopted his brief of argument when this appeal came up for hearing on 16/4/2015. He urged the court to allow the appeal.
Arguing his sole issue, appellant’s counsel submitted that a police officer has power to initiate criminal proceeding in any court in Nigeria by virtue of the provision of Section 23 of the Police Act Cap M19, Laws of the Federation of Nigeria as was affirmed by the Supreme Court in FEDERAL GOVERNMENT (SIC; REPUBLIC) OF NIGERIA V. OSAHON (2006) 5 NWLR (973) 361. He noted that the respondent was charged under S. 17 (a) and (b) of the Miscellaneous Offences Act Cap M17 LFN 2004 which is not related to the offence of vandalization of oil pipelines under Section 3 (1) (f) (vi) of the Nigeria Security and Civil Defence Corps Act raised by the trial court.
It was argued that the phrase “the Corps shall have power” in Section 3 (1) (f) of the Nigeria Security and Civil Defence Corps Act does not mean the same thing as “shall have and exercise exclusive jurisdiction” to prosecute offenders under the Section. It was his further argument that it would be absurd to interprete the said provision as giving the corps absolute and exclusive power to prosecute offenders under the section to the exclusion of the appellant.
He finally urged the court to uphold the appeal and set aside the ruling of the trial court.
I should pause at this point to restate that the offence with which the respondent was charged at the trial court was for loading some quantity of petroleum product suspected to be crude oil with intent to import, sell and distribute or otherwise without lawful authority or appropriate licence under Section 17 (a) and (b) of the Miscellaneous Offences Act, Cap M17 LFN, 2004. Inspite of this, the trial court suo motu raised, considered and decided on the point whether or not the Police can prosecute cases of oil pipeline vandalization under Section 3 (1) (e) and (f) of the Nigerian Security and Civil Defence Corps (Amendment) Act 2007. These are two different offences created by two different Acts of the National Assembly.
One is not synonymous with the other.
Even though appellant’s counsel made submission in that regard, I shall not pursue the point any further since it does not form part of the sole issue raised by appellant’s counsel especially in the light of the grounds of appeal contained in the notice of appeal. See the case of ABBA V. SHELL PETROLEUM DEVELOPMENT COMPANY (NIG) LTD (2013) 11 NWLR (1364) 86, 108.
I shall now address the only issue raised by appellant’s counsel which I adopt for the purpose of the determination of the appeal.
In determining the issue, it is pertinent to set out the provisions of the Constitution of Nigeria 1999 (as amended) and other laws relevant to the issue immediately here under:
(1) Section 174 (1) (a) (b) and (c) of Constitution of the Federal Republic of Nigeria 1999 (as amended).
(2) Section 23 of the Police Act.
(3) Section 3 (1) (f) (vi) of the Nigeria Security and Civil Defence Corps Act.
(1)Section 174 (1) (a) (b) and (c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides as follows:
(1) The Attorney – General of the Federation shall have power;
(a) To institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly;
(b) To take over and continue any such criminal proceedings that may be instituted by any other authority or person; and
(c) To discontinue at any stage before judgment is delivered, any such criminal proceedings instituted or undertaken by him or any other authority or person”.
(2) Section 23 of the Police Act states:
“Subject to the provision of Sections 211 and 174 of the Constitution of the Federal Republic of Nigeria (which relate to the power of the Attorney-General of the Federation and of a state to institute and undertake, take over and continue or discontinue criminal proceedings before any court of law in Nigeria) any Police officer may conduct in person all prosecutions before any court whether or not the information is laid in his name”.
(3) Section 3 (1) (f) (vi) of the Nigeria Security and Civil Defence Corps Act states:
“(1) The Corps shall –
(f) Have power to arrest with or without a warrant detain, investigate and institute legal proceedings by or in the name of the Attorney – General of the Federation in accordance with the provisions of the Constitution of the Federal Republic of Nigeria against any person who is reasonably suspected to have committed an offence under this Act or is involved in any-
(vi) Power transmission lines or oil pipelines, NIPOST cables, equipment, Water Board pipes or equipment vandalization”.
Section 23 of the Police Act empowers any police officer, id est, any member of the Police Force vide Section 2 of the Police Act, in person to institute and prosecute any criminal proceedings before any court whether or not the information is laid in his name. In otherwords, a police officer can institute and prosecute a criminal proceeding even in the name of the Federal Republic of Nigeria. This power is only subject to the provisions of sections 211 and 174 of the Constitution of Nigeria 1999 (as amended) which relates to the power of the Attorney – General of a State or the Federation to institute, undertake, take over and continue or discontinue criminal proceedings against any person before any court of law in Nigeria (except a Court – Martial).
It is therefore my view that the appellant had the power to institute and prosecute the offence charged before the trial court or even any offence under the Nigeria Security and Civil Defence Corps Act. Since the Attorney – General of the Federation did not exercise his powers under Section 174 of the Constitution; the exercise of that power by the police should not have been interrupted by the striking out of the charge for the reason stated by the trial court.
In the case of OLUSEMO V. COP (1998) 11 NWLR (575) 547, 558, Kutiga, JCA, as he then was, stated:
“In this instance the power to prosecute and undertake criminal prosecution is vested on the Police Officer under Section 23 of the Police Act subject to the exercise of powers conferred on the Attorney-General by the provision of Section 160 of the Constitution. It is very clear and without any doubt, that the Attorney – General of the Federation has not exercised his powers under Section 160 of the Constitution in the instant case. Therefore the police officer’s powers to prosecute in the criminal proceedings in the case are not limited, restricted or controlled”.
See also COMPTROLLER, NIGERIA PRISONS SERVICE, IKOYI, LAGOS V. ADEKANYA (No. 1) (2002) 15 NWLR (790) 362.
The trial court relied on Section 3 (1) (f) (vi) of the Nigeria Security and Civil Defence Corps Act to hold that the Police did not have the vires to institute the criminal proceedings. I respectfully do not agree with the trial court. In the first place, the wording of the provisions is clear and unambiguous and effect should be given to the provisions as doing so would not be absurd. See AWOLOWO V. SHAGARI (1979) 6-9 SC 51 and RABIU V. STATE (1980) 10 SC 1.
Section 3 (1) (f) of the said Act provides inter alia that the Corps shall have the power to arrest, investigate and institute legal proceedings by or in the name of the Attorney-General in accordance with the provisions of the Constitution of Nigeria against any person who is reasonably suspected to have committed an offence under the Act. It does not give exclusive power in that regard to the Corps. In otherwords, it does not exclude the police from prosecuting for offences under it. To hold otherwise, as appears to have been the position of the trial court, would amount to reading into the provision words not found therein and without adequate grounds for doing so. See FEDERAL REPUBLIC OF NIGERIA V. OSAHON (2006) 138 LRCN 1575, 1640.
More importantly, the power of the Police to undertake any criminal prosecution (including for offences under the Miscellaneous Offences Act or the Nigeria Security and Civil Defence Corps Act) is also traceable to or recognised by Sections 211 and 174 (1) (b) and (c) of the 1999 Constitution of Nigeria (as amended) by the expression “…any such criminal proceedings that may have been instituted by any other authority or person”. An “authority “is defined as “the people or an organization who have the power to make decisions or who have a particular area of responsibility in a country or region”. See OXFORD ADVANCED LEARNERS DICTIONARY 7TH ED PAGE 84. The Police are certainly an authority within the contemplation of Section 174 (1) (b) and (c) of the Constitution. See also Section 214 (1) of the Constitution of Nigeria 1999 (as amended) and Sections 3, 4, 23 and 24 of the Police Act.
It follows therefore that the power of the Police to prosecute traceable to or recognised by the constitution cannot be nibbled at or eroded by an Act of the National Assembly, viz; the Nigeria Security and Civil Defence Corps Act. This is because the Constitution is the grund norm and it is superior to all other laws. See Section 1 (1) of the Constitution.
In the case of FEDERAL REPUBLIC OF NIGERIA V. OSAHON supra, the appellant charged the respondents with various offences under the Miscellaneous Offences Decree (Act) of 1984. The 1st – 8th respondents prayed for the charge to be quashed upon several grounds but mainly on the ground that the prosecutors were police officers and not officers of the Attorney- General of the Federation’s office. The Supreme Court discountenanced the position. Belgore, JSC, as he then was, stated at page 1605:
“Police authority can by virtue of the aforementioned provision of Section 174 (1) of the Constitution prosecute any criminal suit either through its legal qualified officers or through any counsel they may engage for the purpose”
(underlining is mine for emphasis).
Kutigi, JSC, as he then was, stated: at page 1613 that;
“…Any police officer has the power to conduct criminal proceedings before the Federal High Court.
Mohammed, JSC stated that,
“… This power of the police to prosecute the respondent before the Federal High Court is also traceable to the provision of the 1999 Constitution itself in Section 174(1)…”
The power of the Police to prosecute therefore can only be limited or restricted by the Attorney – General.
With the few points I have made above, I answer the only issue for determination in the negative and resolve it in favour of the appellant.
The appeal has merit and it is allowed. The judgment of the trial court is set aside. It is ordered that the case be sent back to the Chief Judge of the Federal High Court for re-assignment to another Judge of the Federal High Court than the Judge who sat as the trial judge for hearing and determination.
ABUBAKAR JEGA ABDULKADIR, J.C.A. CON: I have read in draft the judgment delivered by my learned brother, JOSEPH EKANEM, JCA. He has aptly and adequately dealt with the appeal wherein I also endorse the reasons and conclusions arrived thereat. I therefore have nothing further to add but to endorse the judgment by allowing the appeal in the same terms as contained in the lead judgment.
I abide by the consequential orders contained in the lead judgment.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance the lead judgment of my Lord Ekanem JCA just delivered and I am in total agreement with the reasoning and the conclusion reached thereat. The trial judge went out of his way, to fish out suo motu, whether the police could prosecute cases of oil pipe-line vandalization, when that was not the charge against the respondent. He held wrongly, that the Nigeria police lacks the authority to initiate the proceedings. This has caused avoidable delays in the prosecution of the case. This should be avoided as much as possible. I also allow the appeal and set aside the judgment of the trial court. I abide by the orders made in the lead judgment.
Appearances
C. I. Okpoko, Esq. (Assistant Director, Federal Ministry of Justice) (with him, Friday Ibadin, Esq, ACP) and Elder David O. Abuo (PSC)For Appellant
AND
Respondent absent and unrepresented.For Respondent
