⦿ CASE SUMMARY OF:
The Federal Republic of Nigeria v. George Osahon & Ors. (2006) – SC
1. The Federal Republic of Nigeria
1. George Osahon
2. Augustine Avuru
3. Felix Agabo
4. Olatunde Ayodele Isaac
5. Allied Energy Resources Ltd.
6. Tuskar Resources Ltd.
7. Camac International Nigeria Ltd.
8. Billi Folahan
(2006) 5 NWLR (Pt. 973) 361;
(2006) 2 S.C.(Pt.II) 1;
⦿LEAD JUDGEMENT DELIVERED BY:
Salihu Modibbo Alfa Belgore, JSC.
⦿ LAWYERS WHO ADVOCATED
FOR THE APPELLANT
– Alhaji Abdullahi Ibrahim, SAN.
FOR THE RESPONDENT
– Ayodele Akintunde, Esq. (1st – 7th respondents);
– O. C.Oyeleke, Esq. (8th respondent)
– Chief Bayo Ojo, SAN, Attorney-General of the Federation.
The appellants in this present legal case are challenging the ruling of the Court of Appeal which held that the “Police Officer” who is prosecuting this particular case against the respondents cannot prosecute it without a fiat from the Attorney-General. The Court of Appeal ruling overruled the decision of the High Court which held that the “Police Officer” could prosecute this case without a fiat from the Attorney-General.
Whether the Court of Appeal was right when in interpreting section 56(1) of the Federal High Court Act, section 23 of the Police Act and section 174(1) of the 1999 Constitution, came to the conclusion that the police officers prosecuting the respondents lack the competence to initiate or conduct prosecution before the Federal High Court.
The appeal was allowed and the Supreme Court held that a Police Officer can prosecute by virtue of S. 23 Police Act, S. 56(1) Federal High Court Act, and S. 174(1) of the Constitution of the Federal Republic of Nigeria, 1999. It therefore set aside the decision of the Court of Appeal and restored the ruling of the Federal High Court.
The majority decision of the Supreme Court held the following:
“The Constitution must prevail. Police authority can, by virtue of the aforementioned provisions of S. 174(1) of the Constitution prosecute any criminal suit either through its legally qualified officers or through any counsel they may engage for the purpose. (See Comptroller Nigerian Prisons Serv. Lagos v. Adekanye (No.1) (2002) 15 NWLR (Pt.790) 318, 329). “Any other authority or person” can definitely institute criminal prosecution. The powers of the Attorney-General of the Federation or of the State are not exclusive, any other person or authority can prosecute. However, the Attorney-General can take over or continue the prosecution from any such authority or person. He can also discontinue by way of nolle prosequi.”
“In this instance, the power to prosecute or 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 provisions of section 160 (sic) 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 (sic) of the Constitution in the instance (sic) case. Therefore, the Police officers power to prosecute in the criminal proceedings in this case is not limited, restricted or controlled. The Police Officer is competent to prosecute in these proceedings in any court in Nigeria including the High Court.”
Aloysius Iyorgyer Katsina-Alu, JSC, & Dahiru Musdapher, JSC, dissented.
“There must be proper instructions from duly qualified authority to enable a legal practitioner to appear in court or to prosecute any person. Nuhu Ribadu, as a legal practitioner has no competence even though a police officer, to appear on behalf of the Government of the Federation in the Federal High Court without the consent or instructions of the Attorney-General of the Federation. In my view, section 56(1) clearly restricts the right of police qua police even as a lawyer from appearing in the Federal High Court to prosecute any offence.”
“In my view, section 174 of the Constitution, as mentioned above merely recognises that other authorities or persons may have the power to prosecute criminal offences in some courts, but does not itself bestow Constitutional power to prosecute criminal offences in all courts. It merely recognises the existence of other laws authorising the prosecution of offences by certain officials, in some courts”
“In my view, the general powers of criminal prosecution under section 23 of the police Act are necessarily limited by the specific provisions of section 56(1) of the Federal High Court Act.”
“I do not agree that section 174 of the Constitution is wide enough to cover section 23 of the Police Act to enable any Police Officer to prosecute any criminal offence before any court, such as the Federal High Court. To give such wide interpretation to section 174 of the Constitution as covering the provision of section 23 of the Police Act will obviously lead to absurdity. It would mean that a police officer lawyer or non-lawyer can prosecute say a case of assault in the Federal High Court.”
“In my view, the general power given to the police to prosecute in any court is necessarily amended by the later special provisions under section 56(1) of the Federal High Court Act requiring special representation in prosecutions before that court. In my view, the Federal High Court Act merely creates an exemption or exception from the operation of section 23 of Police Act inoperative as far as prosecutions of criminal offences are concerned in the Federal High Courts.”
Sections 56(1) & 57 of the Federal High Court Act, 1990;
Section 23 of the Police Act, Cap. 359, Laws of the Federation, 1990;
Section 174(1)(a), (b) & (c) of the 1999 Constitution of Nigeria;
Section 2 of the Legal Practitioners Act;
⦿ SOME PROVISIONS
Sections 56(1) and 57 of the Federal High Court Act read as follows:
S. 56(1) “In the case of prosecution by or on behalf of the Government of the Federation or by any Public Officer in his official capacity the Government of the Federation or that officer may be represented by a law officer, State Counsel, or by any legal practitioner duly authorised in that behalf by or on behalf of the Attorney-General of the Federation.
S.57. All persons admitted as legal practitioners to practice in Nigeria shall, subject to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 and Legal Practitioners Act, have the right to practice in the court.”
S.23 of the Police Act provides:
“Subject to the provisions of section 174 and section 211 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 against any person before any court of Law in Nigeria), any police officer may conduct in person all prosecutions before any court whether or not the information or complaint is laid in his name.”
⦿ NOTABLE DICTA
Where two provisions, one each from an Act of National Assembly conflict in relation to the same subject-matter, as in this instance, question of right to prosecute criminal matter in Federal High Court, the conflict cannot be isolated to the two provisions only insofar as there are constitutional provisions on the same matter. In such a situation, the provisions of the Constitution shall govern the interpretation. – Salihu Modibbo Alfa Belgore, JSC. The Federal Republic of Nigeria v. George Osahon & Ors. (2006)
The question of specific provision or general provision of any enactment will disappear in the face of clear provisions of the Constitution. – Salihu Modibbo Alfa Belgore, JSC. The Federal Republic of Nigeria v. George Osahon & Ors. (2006)
Constitution of any country is the embodiment of what a people desire to be their guiding light in governance, their supreme law, fountain of all their laws. As such, Constitution is not at any given situation expected to or presumed to contain ambiguity. All its provisions must be given meaning and interpretation even with the imperfection of the legal draftsman. Common sense must be applied to give meaning to all its sections or articles. – Salihu Modibbo Alfa Belgore, JSC. The Federal Republic of Nigeria v. George Osahon & Ors. (2006)
The Constitution cannot be strictly interpreted like an Act of National Assembly or a Law of State Assembly. As I said earlier, it must be construed without ambiguity because it being fountain of all laws, it is not supposed to be ambiguous. It must be literally interpreted so that every section therein will have meaning. All canons of construction will not abate but will be employed with great caution. – Salihu Modibbo Alfa Belgore, JSC. The Federal Republic of Nigeria v. George Osahon & Ors. (2006)
It is important to recognize that in a Constitution such as ours which is relatively young, to take care of the vagaries and other hidden problems in an unsophisticated society as ours, though vibrant in its intendment and orientation because it is still developing, construction of the provisions must be equally vibrant to be in accentuation with the growth of a dynamic society. In other words, beneficial interpretation which would give meaning and life to the society should always be adopted in order to enthrone peace, justice and egalitarianism in the society. – Ignatius Chukwudi Pats-acholonu, JSC. The Federal Republic of Nigeria v. George Osahon & Ors. (2006)
I believe that where a statute makes the meaning of a provision difficult to discern properly, it is, I dare say, the indisputable right of the court to explore deeper and try to make sense out of it in the context of the primary law so that it would in its operationality following the construct of the court, would have the meaning which it eventually wears and which would help to promote and optimize the cause of justice, the advancement of sociological jurisprudence and the Rule of Law. – Ignatius Chukwudi Pats-acholonu, JSC. The Federal Republic of Nigeria v. George Osahon & Ors. (2006)
It is my considered view that neither section 23 of the Police Act which grants the power to any Police Officer to institute criminal proceedings in any court in Nigeria nor section 174(1)(b) which recognises the right of “any other authority or person” to institute criminal proceedings in Nigeria states that such a Police Officer or any “other person” must be a legal practitioner to be so qualified. The provisions are very clear and it is settled principle of constitutional interpretation that the provisions therein must be interpreted liberally instead of being given restrictive interpretation. It is also against the law for the court to read into any provision of a statute or Constitution what is not expressly or by necessary implication provided or stated. It follows therefore that where constitutional provisions are clear and unambiguous as in this case, there is nothing to be interpreted, the duty of the court being simply to give effect to what has been expressly and clearly stated by the legislature. – Walter Samuel Nkanu Onnoghen, JSC. The Federal Republic of Nigeria v. George Osahon & Ors. (2006)