Ishmael Amaefule & Anor v. The State (1988) – SC


Ishmael Amaefule & Anor v. The State (1988) – SC

by PipAr Chima

Supreme Court – SC.121/1987

Friday, the 15th day of April, 1988

Power of the Attorney General;


B. Wali, J.S.C.

– Mr. Ikeotunonye.

– Mrs. Chianakwalam-Uzoma, Principal State Counsel.

On 22nd February 1984 the two appellants along with 7 others were arraigned before the Chief Magistrate’s Court on a six count charge of conspiracy, stealing, forgery and destruction of evidence. They all pleaded not guilty to the charges and also elected to be tried summarily. The case was then adjourned to 27th April 1984.

This same accused persons were subsequently charged before the High Court on an information.

Within the interval, the 4 accused persons filed a motion on notice in the High Court praying that the information be quashed on the ground that the provision of section 18(ee) of Criminal Procedure (Miscellaneous Provisions) Law No. 19 of 1974 was not complied with. It was contested by learned counsel on both sides and same was dismissed in a considered Ruling delivered by the learned trial Judge.

The 1st and 2nd accused who will from now be referred to as the appellants then appealed to the Court of Appeal Enugu against the Ruling of the trial Court. In its Judgment delivered on 2nd June 1987 the Court of Appeal held that- “the prosecution in the Magistrate’s Court was terminated in substantial compliance with the relevant provisions of Edict No. 19 of 1974 when the case file and the necessary documents were ordered to be transmitted to the Attorney-General who thereafter filed the information in the High Court”, and dismissed the appeal.

This is a further appeal by the Appellants.

Available:  Tasiu Rabiu V. Aishatu Amadu (SC.147/2003, 13 Jan 2012)


I. Whether or not the information filed by the Attorney-General of Imo State in the Owerri High Court in respect of this case was in conformity with the provisions of the Criminal Procedure (Miscellaneous Provisions) Law of No. 19 of 1974 of East Central State which is applicable to Imo State of Nigeria?

A. The wording of the section is clear; and it conveys what it means. The law officer has the option of either making oral application before the court for the transfer of the proceedings from one Magistrate Court to another within the same Chief Magisterial District, or to apply orally for stopping proceedings before that court to enable him prepare proofs of evidence with a view to filing information in the High Court for trial of the same offence. The law officer can elect to apply any of the two methods by writing under his hand.

B. The combined effect of section 191 (1) (a) of the 1979 Constitution and section 18(jj)(2)(c) supra, is enough to sustain the steps taken by the Director of Public Prosecutions to get the case to be prosecuted in the High Court.

C. I can see no basis on which the power of the Attorney-General of Imo State to file the information he filed can be challenged. It is not even certain to me that there is on the face of the papers a case of abuse of process which can be said to be oppressive of the accused persons. First of all, not all the accused persons in the original charge in the Magistrate Court are included in the information filed. Secondly, the counts in the information are slightly different from the counts in the charge in the Magistrate Court. Thirdly, this is not a case in which it can be said that two indictments are pending in two courts – although what is pending in the Magistrate Court contains indictable offences. Fourthly, the charge in the Magistrate Court was adjourned sine die. The papers have been sent to the Director of Public Prosecutions. It is not as if the proceedings had been adjourned to a definite date. It is within the power of the Attorney-General of Imo State, having filed information in the High Court, to take legal steps to terminate the proceedings still pending in the Magistrate’s Court.

Available:  Sunday Kajubo v. The State (1988)

**Nnaemeka-Agu JSC:
i. That state of the facts put paid to any suggestion that the D.P.P. took any action in accordance with the provisions of section 18(ee) of Edict No. 19 of 1974. The proceedings of 18/1/85 belies the affidavit of Ndukwe Agwure lied upon. It is the law officer, which I take to mean the Attorney-General of the State or an officer in his ministry (see Section 191(2) of the Constitution) who may require the Magistrate by writing under his hand to stop further proceedings and to transfer all the statements and documents tendered during the hearing to the Attorney-General for preparing proof of evidence and filing an information. If Exh. B. were written and duly delivered to the Chief Magistrate, she would have been expected to act upon it. Her proceedings of 18/1185 would have reflected her having received such a letter, but that was not the case. As she did not receive it and did not act upon it, it is difficult to see how the court below could have found substantial compliance with the provisions of section 18(ee) of the Edict.

ii. For a court to stop the proceedings in a case is clearly not the same thing with adjourning the case sine die, as the learned Chief Magistrate did. When a court adjourns case, whether sine die or ad diem, the cause or matter is still pending before it and it can call it up on any day to be decided by it. But when a court stops the proceedings in a case, the case is no longer pending before that court and it can no longer take further proceedings in the case.

Available:  Chief Ebenezer Awote & Ors. v. Alhaji Sunmola Kadiri Owodunni & Anor. (1987)

iii. The requirement of fairness of a trial covers a whole range of facts and circumstances which, when taken together, must appear to be fair in the circumstances in which the trial is conducted. That element of fairness will be lacking when a person who has already joined issues with a prosecutor in one court by his plea of “not guilty” is made to face yet another charge in another court while the first charge in the earlier court is still pending.

Sections 18(ee), 18(jj), of the Criminal Procedure (Miscellaneous Provisions) Law No. 14 of 1974;
Section 191 of the 1979 Constitution;

State v. S.O. Ilori and 2 Ors. (1983) 2 S.C. 155 per Eso JSC: “on the extensive and unfettered powers of the Attorney-General, Eso, J.S.C. who wrote the Court’s lead judgment said at page 178, “The pre-eminent and incontestable position of the Attorney General, under the common law, as the Chief law officer of the State, either generally as a legal adviser or specifically in all court proceeding to which the State is a party, has long been recognized by the Courts. In regard to these powers, and subject only to ultimate control by public opinion and that of Parliament or the legislature, the Attorney-General has, at common law, been a master unto himself, law unto himself, and under no control whatsoever, judicial or otherwise, vis-a-vis his powers of instituting or discontinuing criminal proceedings.”





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