A-G Ogun State v. Egenti (1986)

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ATTORNEY-GENERAL, OGUN STATE

 2.
DIRECTOR OF PUBLIC PROSECUTIONS, OGUN STATE

V.

DR. L. C. EGENTI

COURT OF APPEAL

(IBADAN DIVISION)

CA/I/132/85

UCHE OMO, J.C.A. (Presided)

JOHN HEZEKIAH OMOLOLU-THOMAS, J.C.A.

MICHAEL EKUNDAYO OGUNDARE, J.C.A. (Read the Lead Judgment)

TUESDAY, 28TH JANUARY, 1986

CONSTITUTIONAL LAW – Section 191 of the 1979 Constitution – Nolle Prosequi – Scope of the Powers of the Attorney-General of a State.

JUDICIAL PRECEDENT – Stare decisis – Decisions of the Supreme Court – Whether High Court can depart from them.

NOLLE PROSEQUI – Judicial Review of – Whether the courts can question the validity of a nolle prosequi entered by the Attorney-General.

Issues:

1.
Whether the learned trial Judge was right in holding that the nolle prosequi entered by the Attorney-General of Ogun State discontinuing criminal proceedings against the respondent is null and void.

2.
Whether the learned trial Judge was right in failing to follow the decision of the Supreme Court in State v. Ilori (1983) 2 S.C. 155 on the ground that it was given per incuriam.

Facts:

Criminal proceedings was commenced against the respondent on the 7th day of January, 1985 at the Chief Magistrate’s Court, Ijebu-Ode Ogun State after he had been previously detained following allegations of stealing. On the 8th March, 1985. the prosecution called 5 witnesses and closed its case. Counsel for the accused Chief G. A. Aremu then made a submission of no case to answer and

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ruling was reserved till 28th March, 1985. On 26th March, 1985, the first appellant filed and entered a nolle prosequi. By an originating summons dated the same day (26th March,1985) the respondent applied to the High Court of Ogun State sitting at ljebu-Ode for an injunction restraining the 1st and 2nd appellants and/or their officers from filing or entering a nolle prosequi in the criminal charge against the respondent in charge No. MU/10C/S5. The summons was supported by a 23-paragraph affidavit to which a counter-affidavit was filed. In his ruling the learned trial Judge held that the nolle prosequi filed by the 1st appellant on 26th March, 1985 was null and void. In reaching this decision, the learned trial Judge refused to follow the decision of the Supreme Court in the State v. Ilori (1983) 2 SC. 155 on the ground that it was reached per incuriam. On appeal to the Court of Appeal,

Held (Unanimously allowing the appeal):

1.
It is not for a lower Court to say that a decision of the higher Court was reached per incuriam. That is a privilege of that higher Court if after reconsidering its former decision, it is satisfied that the previous decision had been reached per incuriam.

2.
The doctrine of stare decisis is a well settled principle of judicial policy. Thus, while it is open for lower courts to depart from their own decisions reached per incuriam, the lower courts cannot refuse to be bound by decisions of higher courts even if reached per incuriam: [Tsamiya v. Bauchi Native Authority (1957) NRNLR 73 applied and followed.]

QUAERE: What of America International Insurance Company v. Ceekay Traders (1981) 5 SC. 85 where the Supreme Court approved such practice by lower courts. (Editor)

3.
In Nigeria, an Attorney-General may stop any prosecution by entering a nolle prosequi and he need not give any reason for his decision.

4.
The courts cannot pronounce on the validity of the exercise of the powers of the Attorney-General under Sections 160(1) and 191(1)(2) of the 1979 Constitution by virtue of Section 191(3).

5.
A person who has suffered from the unjust exercise of his powers by an unscrupulous Attorney-General is not without remedy, for he can invoke other proceedings against the Attorney-General. But certainly his remedy is not to ask court to question or review the exercise of the powers of the Attorney-General to enter a nolle prosequi: [The State v. Ilori (1983) 2 SC. 155 applied and followed.]

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6.
Per OGUNDARE, J.C.A.: at page 274, para F-G:

“What the learned trial Judge did in the matter on hand is precisely what the ILORI Case decided, he could not do. It follows therefore, that he has not contrary to the doctrine of stare decisis, accepted loyally the decision of the highest court in the Land. In so far as his decision is in conflict with the decision of the Supreme Court in the ILORI Case, it must give way to the latter decision. Whatever remedy the respondent may have, it does not include his questioning the validity of the exercise by the 1st appellant of his powers under Section 191 of the 1979 Constitution of the Federal Republic of Nigeria.”

Nigerian Cases Referred to in the Judgment:

A.-G., Kaduna State v. Hassan (1985) 2 . (Pt. 8) 483

Layiwola v. Queen 4 F.SC. 119

Pascal and Ludwig Inc. v. Kiren (1975) 1 NMLR 74

State v. Ilori (1983) 2 S.C. 155

Tsamiya v. Bauchi N.A. (1957) N.R.N.L.R. 72

Foreign Cases Referred to in the Judgment:

Cassel and Company Ltd. v. Broome & Anor: (1972)2 WLR. 645, 653; (1972) 2 All E.R. 801, 809

Rookes v. Barnard (1964) A.C. 1129

Nigerian Statutes Referred to in the Judgment:

Constitution of Nigeria, 1960, S. 97(6)

Constitution of the Federal Republic of Nigeria 1979 Ss. 104(6), 160(1) and (2), 191(1), (2) and (3), 236

Appeal:

This was an appeal against the decision of the High Court of Ogun State which declared null and void the nolle prosequi entered by the Ogun State, Attorney-General. The Court of Appeal allowed the appeal and dismissed the respondent’s originating summons.

History of the Case:

Court of Appeal:

Division of the Court of Appeal, to which the appeal was brought: Court of Appeal, Ibadan.

Names of Justices that sat on the appeal: Uche Omo J.C. A. (Presided), John Hezekiah Omololu-Thomas, J.C.A. (Read the Leading Judgment), Michael Ekundayo Ogundare, J.C. A.

Appeal No.: CA/I/132/S5

Date of Judgment: Tuesday, 28th January, 1986.

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High Court:

Name of the High Court: High Court of Ogun State, Ijebu-Ode Division

Name of the Judge: Delano, J.

Date of Decision: Monday, 6th May, 1985

Counsel:

A. O. Soetan, Esq., Attorney-General, Ogun State (Mr. O. Osidipe, Law Development Officer, Ogun State with him) – for the Appellants.

A. Ademola – for the Respondent.

OGUNDARE, J.C.A. (Delivering the Lead Judgment): When this appeal came before us for hearing Mr. Ademola, learned counsel for the respondent informed the court that he was not supporting the decision of the lower court appealed against. This notwithstanding the learned Attorney General of Ogun State, Mr. Soetan, addressed the court on the grounds of appeal filed by him.

By an originating summons dated 26/3/85, the respondent to this appeal, one Dr. L.C. Egenti applied to the High Court of the Ijebu-Ode Judicial Division praying that court for an injunction restraining the Attorney-General of Ogun State and the Director of Public Prosecutions of the said State (who are now the appellants before us) and/or their officers “from filing or entering a nolle prosequi in case No. MIJ/10C/85: COMMISSIONER OF POLICE v. DOCTOR LEVI EGENTI, at the Chief Magistrate’s Court 1, Ijebu-ode, AND THAT any steps taken or to be taken to interfere with the ruling of that court (to be delivered) are null, void and of no effect.” The summons was supported by a 23 paragraph affidavit the penultimate paragraphs of which read as follows:

“1.
That I was falsely accused of stealing by my detractors at my place

of work on the 26th day of December, 1984.

2.
That I was detained over the Christmas and New Year holidays at the State C.I.D. Abeokuta.

3.
That I was to be released on police bail shortly after I was taken to the State C.I.D.

4.
That because some petition-writers were accusing the Ogun State Police of wanting to let me off, I was detained at Abeokuta for seven days as the police informed me they did not want to get involved in the personality clash at Nigerian National Paper Manufacturing Company Limited.

5.
That I was charged to court (Chief Magistrate’s) Court No. 1, Ijebu-Ode) on the 7th day of January, 1985.

6.
That the court granted me bail and the case was adjourned for hearing on the 8th day of March, 1985.

7.
That on the 8th day of March, 1985, the prosecutor called five witnesses for the prosecutions and then closed his case.

8.
That thereafter my leading counsel. (Chief G. Adebayo Aremu) made a no case submission: ruling was reserved till the 28th day of March, 1985.”

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To the affidavit were attached three documents which are not relevant to the determination of this appeal.

An interim order was made by the learned trial Judge on 27/3/85 restraining the Chief Magistrate Court No. 1 from giving a ruling in the criminal case against the respondent pending the determination of respondent’s application to the court. On 23/4/85, a counter-affidavit was filed on behalf of the appellants. Paragraphs 2-6 of the said counter-affidavit read as follows:

“2.
That by virtue of my schedule of duties I am familiar with the facts leading to this case.

3.
That the 1st respondent filed and entered at 11.25 a.m. on 26/3/85 at the Chief Magistrate Court Ijebu-Ode a nolle prosequi in Charge No. MIJ/10c/85 Commissioner of Police v. Dr. Levi Egenti and attached herewith and marked exhibit ‘A’ is the duplicate copy of the said nolle prosequi showing the acknowledgment of receipt of the original by the Registrar, Magistrate Court, Ijebu-Ode.

4.
That consequent upon the nolle prosequi filed and entered the Ijebu-Ode Chief Magistrate Court discharged the accused person in charge No. MIJ/10c/85 on 29/3/85. The court’s ruling is attached and marked “exhibit B.”

5.
That the 1st respondent had seen and read the police case file No. CER/4/85, sent to the Ministry of Justice, Abeokuta, Ogun State by the Commissioner of Police on the subject-matter contained in the charge No. MIJ/10c/85.

6.
That I was informed by the 1st respondent that the decision to act as in paragraph 3 above was reached by the 1st respondent having regard to the public interest, the interest of justice and the need to prevent abuse of legal process.”

Hearing of the application took place on 26/4/85 and a ruling delivered on 6/5/85. In his ruling, learned trial Judge (Delano, J.) held (1) that the decision of the Supreme Court in State v. S.O. Ilori & 2 Ors. (1983) 2 S.C. 155. was reached by that Court per incuriam and (2) that the nolle prosequi filed by the Attorney- General in respect of Charge MIJ/10c/85: Commissioner of Police v. Doctor Levi Egenti, on March 26th, 1985 was null and void and of no effect. It is against these two issues that the appellants have now appealed to this Court upon the following five grounds, to wit:

GROUND ONE

“(1)
The learned trial Judge erred in law when he held that the decision of the Supreme Court in the Stare v. Ilori and 2 Ors. (1983) 2 S.C. 155, was arrived at “per incuriam”.

PARTICULARS OF ERROR

The learned trial Judge agreed that his court “is bound by the principle of stare decisis” but refused to follow the decision of the Supreme Court in the Ilori case as it had. according to the learned Judge, been arrived at “per incuriam “.

GROUND TWO

(2)
The learned trial Judge erred in law by failing to give due cognizance of the provisions of section 191(1)(c) of the Constitution of the Federal Republic of Nigeria 1979 which empowers the

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Attorney-General of a State to discontinue at any stage before judgment is delivered in criminal proceedings instituted or conducted by him or any other person or authority.

PARTICULARS OF ERROR

The learned trial Judge held that in his view the case was not one in which the Attorney-General “should file a nolle unless the appellant will not be subjected to another trial peril. A nolle is not meant to give the prosecution another chance to proffer evidence, unless the case falls within the accepted principles in consideration in filing a nolle and in particular after a submission of a no case.”

GROUND THREE

(3)
The learned trial Judge misdirected himself in law when he held that the powers of an Attorney-General under section 191(1) and (2) can be limited by the common law principles mentioned in the judgment and that such exercise are subject to review as stated in the judgment.

PARTICULARS OF MISDIRECTION

The learned trial Judge expressed the view that “the insertion of Section 191(3) in the 1979 Constitution is to emphasise that the provision that in exercising his powers under section 191(1)(2), the Attorney-General in having regard to the public interest, the interests of justice and the need to prevent abuse of legal process shall have regard to the principles governing the filing of a nolle prosequi at common law and currently which are the disposal of technically imperfect proceedings instituted by the State and the termination of oppressive but technically impeccable proceedings by private prosecutions like the facts in Ilori’s case supra. Once it is apparent that a nolle is not properly filed within the accepted principles, the issue of reviewing or investigating the ground for filing the nolle does not arise for the nolle is patently illegal. The issue of reviewing or investigating may arise if the nolle on its face value is lawful and this is what the law forbids. To review or investigate is to find out whether the Attorney-General in deciding to file a nolle is possessed of sufficient facts to make one say that he has regards to public interest, interest of justice and the need to prevent abuse of legal process.”

GROUND FOUR

(2)
The learned trial Judge misdirected himself in law when after having set out the common law principles applicable to the exercise of an Attorney-General’s power to enter a nolle prosequi he failed to follow the principles.

PARTICULARS OF MISDIRECTION

The learned trial Judge held that the common law grounds for discontinuing criminal proceedings were:

(i)
Disposal of technically imperfect proceedings instituted by the crown;

(ii)
The termination of oppressive but technically impeccable private prosecutions.

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The learned Judge held that the case was “an example of a case where the police did not follow the accepted practice of referring certain cases to the Director of Public Prosecutor’s Office for advice. There are many of them. The state of affairs has been lamented in relevant quarters without action. For instance, there is no doubt that there is an increase in crime and yet less than 5 cases are listed for an Assize where you should have more. The police have dealt with most of them in their method. I hope the Law and Order Panel has looked into this.”

GROUND FIVE

(5)
The learned trial Judge erred and misdirected himself in law in speculating without any evidence in support as to whether or not the Attorney-General would institute another criminal proceedings against the respondent (the accused in the criminal charge) and also failed to give due cognizance to the judgment of the Supreme Court in the case of State v. Ilori and 2 Others (supra) to the effect that the Attorney-General is not bound to give any reason whatsoever for entering a nolle prosequi in a criminal proceeding nor could he be required to give any undertaking as to his future conduct in connection to the complaint made to him.

PARTICULARS OF ERROR IN LAW AND MISDIRECTION

The learned trial Judge expressed the view that:

“Instituting another criminal proceedings against the applicant is another torture of the applicant due to the blunder of the Executive to which the Attorney-General and the Police belong. It can almost be likened to putting the applicant in jeopardy twice although he has neither been convicted nor acquitted. It seems the applicant has a remedy of suing the Attorney-General to institute another criminal proceedings, to determine the extent to which his legal right is being trampled upon within section 236 of the 1979 Constitution in order to declare the action null and void.”

The learned Attorney-General, on ground one, relying on Tsamiva v. Bauchi N. A. (1957) NRNLR 73,82-83 Pascal and Ludwig Inc. v. Kiren 9 (1975) NMLR 75,77 and 78; Broome v. Cassell & Company (1972) 2 WLR 649, 652, 653-4 submitted that it was not for a subordinate court to declare that a decision of a higher court has been given per incuriam.

On grounds two – five, the learned Attorney-General submitted that if the trial Judge had followed State v. Ilori & Ors. (supra) he would not have reached the conclusion he finally arrived at.

The learned Attorney-General urged us to allow the appeal and to hold that the nolle prosequi, the subject matter of the proceedings leading to this appeal was validly entered on 26/3/85 and was not null and void.

Mr. Ademola for the respondent, in short contribution drew our attention to Attorney-General Kaduna State v. Nassau (1985) 2 . (Pt. 8) 483 which confirmed Ilori’s case.

The following passage appears in the ruling of the learned trial Judge:

“In respect of the nolle. Chief Aremu pointed out that the nolle was filed under Section 191(1) (2) of the Constitution and submitted

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that the provision of sub-section 3 of Section 191, supra which provides that the Attorney-General in exercising his powers shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process is mandatory. He referred to paras. 7-24 of the affidavit in support of the application, supra, and particularly pointed out that these paragraphs are not contradicted. He therefore submitted that the filling of the nolle prosequi by the Attorney-General was in bad faith. He therefore urged the court to set it aside because it was filed not in strict compliance with the provisions of the law. In a short reply. Okuwa submitted that the court could not investigate the reasons leading to the Attorney-General filing the nolle. He referred to State v. S. O. Ilori & 2 Ors. (1983) 2 S.C. 135. 178-207 in support.”

   In discussing the above submissions of learned counsel, the trial Judge said:

 “The rub of the case is the contention in respect of the interpretation of Section 191 (3) of the 1979 Constitution. As the case State v. S. O. Ilori & 2 Ors. appears to be an answer to the facts canvassed by the applicant’s Counsel, it is desirable to deal with the facts of the case in extenso.”

After stating the facts in Ilori’s case and quoting passages from the lead judgment of Eso, J.S.C. in the said case, the learned trial Judge went on to say:

“The Court of Appeal, in my view, arrived at the correct decision even without considering Section 104(6) supra. It is significant that the Supreme Court did not refer to the Section 104(6). It is to be noted that when Shittu Layiwola & Ors. v. The Queen (1959) 4 F.S.C. 119 was decided, the 1960 Constitution by its Section 97(6) contained the provision of Section 104(6) supra. From above, it seems the decision in State v. Ilori & 2 Ors. with all due respect, was arrived at per incuriam. But then, my court is bound by the principle of stare decisis. This means that the submission of Okuwa, of counsel, should be upheld. Once this court cannot review or investigate the reasons for the Attorney-General in filing the nolle prosequi, where the reasons are not known, there is no ground for declaring that the nolle prosequi is null and void even if the motive for the nolle was mala fides.”

This last passage is, to put it mildly, rather unfortunate. It is a well settled principle of our judicial policy that as ours is a hierachical system of courts a lower court is bound by the decision of a higher court which decision the lower court is to apply loyally. As Jibowu, Acting F.C.J. (as he then was) put it in Jalo Tsamiya v. Bauchi Satire Authority(supra):

“We do not quarrel with the High Court’s decision not to follow their own previous decisions, if they felt that the decisions had been reached per incuriam: but there is no precedent for their refusing to follow a previous decision of the West African Court of Appeal on the subject matter of the inquiry because they considered that that decision had been reached per incuriam. With respect to the learned Chief Justice and other members of the court, ii must be pointed out that it is not for an inferior court to say that

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a decision of the higher court was reached per incuriam: that is a privilege of the higher court if. alter reconsidering its former decision, it is satisfied that the previous decision had been reached per incuriam.”

This principle which is generally known as the doctrine of stare decisis, was again restated by Eso, J. A (as he then was) when in delivering the judgment of the Western State Court of Appeal in Pascal & Ludwig Inc. v. Kiren (supra) he said:

“There is no gainsaying in that we are bound by the decision of the Supreme Court and the duty of this court, whenever such decision exists, lies in applying it.”

The learned Justice of Appeal later in the judgment declared:

“Adherence to precedence is one of the strongest principles of judicial policy – stare decisis et non quita rovere. “

The position is the same in England. In Cassel & Company Limited v. Broome & Anor: (1972)2 WLR 645,653; (1972) 2 All E.R. 801,809 referred to by Eso, J. A. in his judgment and cited to us by the learned Attorney-General, the Court of Appeal in England (Denning M. R. Salmon and Phillimore, LJJ) in a situation not dissimilar to that of the learned trial Judge in the matter on hand, had criticised the decision of the House of Fords in Rookes v. Barnard (1964) AC 1129 as being wrongly decided. The Court of Appeal went on to claim that the decision was arrived at per incuriam, and without argument from counsel.

Lord Hailsham, Lord Chancellor in his judgment, castigated the Court of Appeal in no uncertain terms when he said:

“The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers. Where decisions manifestly conflict, the decision in Young v. Bristol Aeroplane Co. Ltd. offers guidance to each tier in matters affecting its own decisions. It does not entitle it to question considered decisions in the upper tiers with the same freedom. Even this House, since it has taken freedom to review its own decisions, will do so cautiously.”

The rationale behind the doctrine of stare decisis is well stated in the 1966 declaration of the I louse of Lords w here Lord Gardiner L.C. said:

“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.”

In the light of the Nigerian authorities referred to above, it can no longer be doubted that the doctrine of stare decisis is now a well settled principle of judicial policy which is to be strictly adhered to by all lower courts.

And it is to be hoped that the course adopted by the learned trial Judge in the matter now on hand will no longer be repeated.

It is the contention of the learned Attorney General in grounds two to five that if the learned trial Judge had followed the decision in The State v. Ilori & Ors. (supra) he would not have declared the nolle prosequi filed by the learned Attorney- General null and void.

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I agreed with this contention. In Ilori, Fatayi-Williams. C.J.N. said at pages 156 – 7 of the report:

“I would, however, like to stress the following points which I consider pertinent. The Attorney-General of a State in Nigeria has many powers and duties with regard to criminal proceedings in respect of any offence created by or under any law of the House of Assembly of the State. These powers are clearly spelt out in section 191 of the 1979 Constitution. He may, for example, stop any prosecution under a State Law by entering a nolle prosequi. He need not give any reasons for his decision. All he needed to do when deciding to discontinue any such criminal proceedings at any stage of the proceedings is to “have regard to the public interest, the interest of justice, and the need to prevent abuse of legal process”. A number of factors, known to the Attorney-General, must, of necessity, come to his mind when he decides whether to prosecute or not. It may not be in the public interest to disclose any of these.

To my knowledge, and presumably for these reasons, the courts have never sought to interfere with the exercise of that power. That is how it should be, bearing in mind that the Attorney-General is the principal law officer of the State coupled with the fact that he should not be subjected to any pressure either by the Executive or by the courts in the exercise of this enormous power.”

Indeed, the ratio decidendi in Ilori is that the court cannot pronounce on the “validity of the exercise of the powers of the Attorney-General under Sections 160(1) and (2) and 191(1) and (2) by virtue of the provisions of subsections (3), in each case, of 160 and 191” per Idigbe, J.S.C.

I am not unaware that some of the Justices of the Supreme Court who decided the Ilori case recognised that “a person who has suffered from the unjust exercise of his powers by an unscrupulous Attorney-General is not without remedy; for he can invoke other proceedings against the Attorney-General. But certainly, his remedy is not to ask the court to question or review the exercise of the powers of the Attorney-General.” per Eso, J. S.C.

What the learned trial Judge did in the matter on hand is precisely what the Ilori case decided he could not do. It follows therefore that he has not, contrary to the doctrine of stare decisis, accepted loyally the decision of the highest court in the Land. In so far as his decision is in conflict with the decision of the Supreme Court in the Ilori case, it must give way to the latter decision. Whatever remedy the respondent may have, it does not include his questioning the validity of the exercise by the 1st appellant of his powers under Section 191 of the 1979 Constitution of the Federal Republic of Nigeria.

In conclusion, this appeal succeeds and it is hereby allowed. The decision of Delano, J. given in this matter on 6th May, 1985 is set aside. The respondent’s originating summons is dismissed. In view of the attitude in this court of respondent’s counsel. I make no order as to costs.

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OMO, J.C.A. (Presiding): I agree entirely with the judgment just delivered by my learned brother, Ogundare, J.C.A.; and have nothing useful to add thereto.

       I also allow the appeal with no order as to costs.

OMOLOLU-THOMAS, J.C.A.: I have had the privilege of reading the draft of the judgment of my learned brother, Ogundare, J.C.A. just read, and I am in entire agreement with him in allowing the appeal with no order as to costs. There is nothing I can usefully add.

Appeal allowed.

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