➥ CASE SUMMARY OF:
Chief Gani Fawehinmi v. Col. Halilu Akilu & Anor. (SC.43/1987, 18 December 1987)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Locus standi to institute criminal proceeding by a private person.
➥ CASE FACT/HISTORY
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.
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 then to this Court. In the High Court of Lagos State holden at Lagos, the appellant, by originating motion ex parte dated 7th November. 1986 applied for: “an order for leave to apply for an order of mandamus compelling Mr. J.A. Oduneye, Direclor of Public Prosecutions, Lagos State, to exercise his discretion whether or not to prosecute Col. Halilu Akilu and LI. 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.”
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.”
➥ ISSUE(S)
I. Whether the Appellant has the locus standing to institute the criminal proceeding?
II. Whether the Appellant has established a prima facie case entitling him to leave to apply for mandamus?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[THE APPELLANT HAS LOCUS STANDI TO INSTITUTE THE CRIMINAL PROCEEDING
‘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 sections 340, 342 and 343 of the Criminal Procedure Law by his adverse comment on the want or sufficiency of the evidence supplied by the 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.’
‘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. 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 Giwa 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. II 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.’
PER NNAMANI JSC: ‘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. 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.’]
.
.
↪️ ISSUE 2: IN APPELLANT’S FAVOUR.
[THE APPELLANT IS JUSTIFIED IN BRINGING THE APPLICATION FOR MANDAMUS
‘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 anyone 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.’
‘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.’]
.
.
.
✓ DECISION:
‘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 ₦300.’
➥ FURTHER DICTA:
⦿ LOCUS STANDI IS DIFFERENT FROM THE MERIT OF THE CASE
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 and 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 and Ors. v. Oyebi and 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 and Ors. v. Oyebi and Ors. (1984) 5 SC.1 at 28 per Obaseki, JSC. 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. — Obaseki JSC.
⦿ ORDER OF MANDAMUS CANNOT BE ORDERED WHERE THE PUBLIC DUTY IS DISCRETIONARY
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. 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 ER 87 (1965) 1 WLR. 700; Re Fletcher’s Application (1970) 2 All ER. 57. The duty must be reasonably certain [ R. v. Wilts and Berks 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 ER. 694 HL; R. v. Beacontree J.J. ex p. Mercer (1970) Cr. LR. 103.] — Obaseki JSC.
⦿ PROCEDURE FOR AN ORDER FOR MANDAMUS
✓ 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. II 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. 6/7.1 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 everyone 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 and Berks Canal Co. (1835) 3 Ad and EC 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. — Obaseki JSC.
✓ 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-parte application for mandamus? The procedure for applying for mandamus falls into two stages. The first stage consists of an application ex-parte under Order 53 rule 1 of the High Court of Lagos State (Civil Procedure) Rules, Cap.52. The ex-parte application must, inter alia, 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-parte application is being made the respondent does not take part, so that the judge hearing the ex-parte 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 I.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-parte application. A mere suspicion or inkling that a dispute or controversy exists is enough for the judge to grant the ex-parte application. It is sufficient also if the judge is satisfied that the application ex-parte is not frivolous, vexatious or an abuse of the process of the Court. — Uwais JSC.
⦿ GANI FAWEHINMI COMMENDED FOR HIS BRIEF
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. — Eso JSC.
⦿ A COURT/JUDGE IS NOT A RUBBER STAMP
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. — Eso JSC.
⦿ WHEN IT COMES TO THE LAW OF CRIME, EVERYONE IS HIS BROTHER’S KEEPER
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 … 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 comes to the law of crime, everyone is certainly his brother’s keeper. — Eso JSC.
⦿ BIAS OR SENTIMENT SHOULD NOT FILTER INTO JUSTICE
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. — Eso JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Obaseki, JSC.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Chief Gani Fawehinmi.
⦿ FOR THE RESPONDENT(S)
J.A. Oduneye, Solicitor-general, Ministry of Justice, Lagos State (with him Mrs. O. Shoyemi-Alli Senior State Counsel).
➥ MISCELLANEOUS POINTS
***DISSENTING
**Craig JSC:
- THE DPP HAS NOT REFUSED TO PROSECUTE
‘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.’
‘Before us, Chief Fawehinmi did not challenge the statement of Law enunciated by the learned C.J. that a “refusal” is a condition precedent to the grant of a Mandamus, rather, counsel has asked us to hold that the D.P.P.’s reply amounted to a refusal. I have read over the D.P.P.’s reply, and I do not think that it can be interpreted as a refusal to perform his public duty. I am satisfied that the D.P.P. has not refused to endorse the information presented to him. I agree with the learned Chief Judge that what the D.P.P. was telling the applicant was that he has not taken a decision on whether or not to prosecute.’
‘This much is apparent from the applicant’s own Motion paper. In the Motion, the applicant prayed for: “An order for leave to apply for an order of Mandamus compelling Mr. J.A. Oduneye D.P.P. Lagos State 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 on the information submitted to him……………….” I have underlined the important words. The words underlined show that there has been no refusal by the D.P.P. At the highest it can be said that he was still considering the various proposals placed before him. This was why in his reply to the applicant; the D.P.P. was alleged to have said that: “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 to use those which have been made available (or are yet to be made available) by the Police. Whatever it is, the D.P.P.’s reply is not a clear cut refusal.’
‘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.’
‘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.’
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
