3PLR – AMAEFULE V. THE STATE

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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AMEEFULE

V.

THE STATE

 

IN THE SUPREME COURT OF NIGERIA

15TH APRIL, 1988.

SUIT NO. SC 121/1987

3PLR/1988/12  (SC)

 

OTHER CITATIONS

(1988) NWLR (Pt.75) 238

 

BEFORE THEIR LORDSHIPS:

NNAMANI, J.S.C. OPUTA, J.S.C.

AGBAJE, J.S.C.

NNAEMEKA-AGU, J.S.C.

WALI, J.S.C.

 

BETWEEN

1. ISHMAEL AMAEFULE
2. CYRIL AMAEFULE

 

AND

THE STATE

 

REPRESENTATION

1. B. C. Ikeotuonye, S.A.N. (with him Bella Fombo (Miss) – for the Appellants
2. U. Chianakwalam-Uzoma (Mrs.), P.S.C., Imo State – for the Respondent

 

MAIN ISSUES

Criminal Procedure – Filing of information while proceedings are pending in lower coup – Compliance with s.18(ee) of the Criminal Procedure (Miscellaneous Provisions Law No. 19 of 1974, Cap. 31, Laws of Eastern Nigeria, 1963.

Constitutional Law – Double jeopardy – Trial of accused persons on same offence simultaneously in different courts – Constitutional significance – Right to fair trial – Section 33(4) 1979 Constitution – Power of Attorney-General to discontinue or continue proceedings – S.191(3) – Saving provisions of the Constitution – S.274 1979 Constitution – “Existing Laws”.

Administrative Law – Judicial control of discretionary power – Attorney- General – Powers under the Constitution – 5.191, 1979 Constitution – Executive discretion of Attorney-General as a minister.

Practice and Procedure – Abuse of judicial process – Meaning of.

 

MAIN JUDGEMENT

WALI, J.S.C. (Delivering the Lead Judgment):

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.

On 24th April, 1984 the record of the learned Chief Magistrate reads –

“Accused persons present. Insp. Asajioku for prosecutions Mr. B. A. Njemanze for the 1st and 2nd Accused.

Mr. N. Okoronkwo for 5th, 6th, 7th, 8th and 9th Accused. Mr. Obizue for 3rd and 4th Accused.

COURT. Case adjourned to 29th June 1984. (Sgd.) R. A. Wilson (Mrs.) CHIEF MAGISTRATE”.

As the record shows, the case came up on 18th January 1985 (but not on 29th June 1984 as it was scheduled to), the prosecution was on that date represented by Sergeant Eke, the 1st and 2nd accused by G. C. Iwuh, the 3rd and 4th accused by Obizue while the 5th, 6th, 7th, 8th and 9th accused were represented by Okoronkwo. The learned Chief Magistrate on that date remarked that –

“Prosecution informs court that the case is still with the Director of Public Prosecutions who called for it. Director of Public Prosecutions should prosecute the case as it seems the file is not coming back and it is not fair for the parties to continue wasting time in this court. The original case file or any other document relating to this case be transmitted to the D.P.P. for necessary action. Inventory of Exhibits to be also forwarded.

Case adjourned sine die.”

As the record shows again, the learned Director of Public Prosecutions purporting to comply with sections 18(ee) and 180j) of Criminal Procedure Miscellaneous Provisions Edict No. 19 of 1974 applicable in Imo State, wrote “Exhibit B” (dated 2nd October 1984) to the learned Chief Magistrate requesting “that the proceedings of the above named case be stopped and the case file and all statements or documents tendered during the proceedings to be transferred to the Attorney-General for the purpose of preparing proofs of Evidence in respect of the charge (s) with a view to preferring information.” And on 4th August 1985 the learned Attorney-General of Imo State filed an information containing six counts against 4 of the 10 accused persons originally arraigned before the Chief Magistrate and whose names were given as follows –

(1) Ishmael Amaefule (2) Cyril Amaefule (3) Emeka Nwosu (4) Ignatius Okeke

On 18th November, 1985, the case came up before the High Court, Owerri. All the four accused were represented by different counsel of their own choice and with the exception of 3rd accused all were present in court. All the four accused were granted bail on the following five stringent conditions:

“(i)     In the sum of N20,000.00 with one surety in the same amount

(i)      The surety must have landed property within Owerri Urban Area

(iii)    The surety must be resident within Owerri Urban Area

(iv)    The surety must swear to affidavit of means and must disclose details of his title deed in respect of any landed property he puts up for purposes of this order or the receipts by which he paid rates and other official charges in respect of the property within the last three years.

(v)     The application for bail by the surety must be recommended by a solicitor.”

It was then adjourned to 28th November 1985 by the learned Judge. On 28th November 1985, when 3rd accused failed to show up again the learned Judge revoked the bail granted to the accused. He ordered 1st, 2nd and 4th accused to be remanded in prison custody while he made an order for a Bench Warrant to issue for the arrest of the 3rd accused person. He adjourned the case to 6th February 1986.

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.

Two grounds of appeal were filed. Briefs of Arguments by the appellants and the respondent for and against the said grounds were filed and exchanged. At the hearing of the appeal the issue canvassed in the briefs were further orally elaborated upon.

In the brief filed learned Senior Counsel for the appellant formulated the following 3 issues for determination:

“2.     Issues For Determination

(1)     Whether the Court of Appeal is right in holding that on the facts before it that the information filed in the High Court of the Owerri Judicial Division against the appellants and others who had elected to be tried summarily complied with the mandatory provision of section 18(ee) of Law No. 19 of 1974?

(2)     Whether the Court of Appeal is right in holding that the prosecution complied substantially with the relevant provisions of Edict No. 19 of 1974?

(3)     Whether the Court of Appeal is right in Law in holding that the burden was on the appellants to subpoena the Chief Magistrate’s Court Owerri to tender the original of a letter dated 2nd of October 1984 purportedly written by the Director of Public Prosecutions terminating the proceedings before the Chief Magistrate’s Court, when what was tendered in evidence by the prosecution was an uncertified office copy?”

The respondent on his part formulated two issues which are:

“(a)    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 pro-visions of the Criminal Procedure (Miscellaneous Provisions) Law of No. 19 of 1974 of East Central State which is applicable to Imo State of Nigeria.

(b)     whether or not Exh. B, a file copy of the letter sent by the Director of Public Prosecutions to the learned Chief Magistrate ordering her to stop proceedings in the case before her, was properly tendered and admitted in Evidence.”

In my view the three issues formulated by the appellants can be condensed into two issues, as done by the respondent. The purport of the complaint in the two grounds is against non compliance with provisions of sections 18(ee) and 180j) of the Criminal Procedure (Miscellaneous Provisions) Law No. 19 of 1974, and the admission of Exhibit B in evidence.

Underground t which is adequately covered by issue 1 of the Respondent’s brief, it was the submission of learned counsel for the appellants that failure by the prosecution to strictly adhere to the provisions of section 18(ee), 1801) and section 5 of the Criminal Procedure (Miscellaneous Provisions) Law, No. 19 of 1974 rendered the fresh information filed before the High Court nugatory. He further buttressed this submission by referring to sections 33(4) and 274 of the 1979 Constitution and the decided case of Onus Okafor v. The State (1976) 5 S.C. 13.

In reply to this, learned Counsel for the respondent submitted that the information filed by the prosecution in the Owerri High Court against the appellants who along with others had elected to be tried summarily conforms with the provisions of sections 18(ee) and 180j)(2)(c) of the Criminal Procedure (Miscellaneous Pro-visions) Law, No. 19 of 1974 of Imo State- He contended that the Hon. Attorney-General of Imo State, in exercising his powers under section 191 of the 1979 Constitution is only expected to follow the procedures laid down for the exercise of such powers as long as they are not in conflict with section 19101 the 1915 Constitution. He said sections 18(ee) and 180j)(2)(c) were fully complied with. He also made particular reference to section 5(c) of Law No. 19 of 1974 which he said conferred on the Hon. Attorney-General power, in special circumstances he considers appropriate, to file information in the High Court, sections 18(ee) and 18(jj)(2)(c) notwithstanding. He cited the following cases in support: Attorney-General, Kaduna State v. Hassan (1985) 2 N.W.L.R. (Pt. 8) p.483 and The State v. Ilori AND OTHERS (1983) 2 S.C. 155.

As correctly stated by Aseme, J.C.A. in his lead judgment, the purpose of en-acting Law No. 19 of 1974 was to make amendment to certain sections of the Criminal Procedure Law Cap. 31 dealing with the preliminary Inquiry into certain categories of offences before same were sent to the High Court for trial. Section 18(ee) of the Criminal Procedure (Miscellaneous Provisions) Law No. 19 of 1974 provides that –

“A law officer, where any charge of indictable offence is being proceeded with summarily by a Magistrate under the provision of this part, may at any time be-fore the decision thereof, by order in writing, under his hand, require such Magistrate to stop further proceedings and to transfer the case to another Magistrate within the same Chief Magisterial District, or to transmit the case file and all statements and documents mentioned in section 7 of the Criminal Procedure (Miscellanous Provisions) Law 1974 made or tendered during the hearing to the Attorney-General for the purpose of preparing proofs of evidence in respect of the charge with a view to preferring an information.”

Learned Counsel for the appellants rightly conceded in my view, that section 18(ee) supra confers two functions on a law officer, and that is, he may by order in writing under his hand.

(1)     require the Magistrate before whom the case is pending to stop any further proceedings and transfer the same to another Magistrate within the same Chief Magisterial District.

(2)     or to transmit the case file and all documents mentioned in section 7 of Law No. 19 of 1974 made or tendered during the hearing to the Attorney-General for the purpose of preparing proofs of evidence in respect of the charge for preferring an information.

With regard to (1) above learned Counsel interpreted the word “may” to be per-missive in the context it is used, and therefore the law officer’s discretion remained unfettered. But where such law officer decides to bring the proceedings of the summary trial in the Magistrate Court to an end for prosecution of the same of-fence in the High Court, the word “may changes meaning and becomes shall, thus becoming mandatory for him to do that in writing under his hand.

With due respect to the learned Counsel, I do not seem to agree with this last construction. The wording of the section is clear; and it conveys what it means. The law officer has the option of either taking 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. Section 191 of the 1979 Constitution also lend support to my views expressed above. It provides thus –

“191  (1) The Attorney-General of a State 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 Law of the State.

(b)     to take over and continue any such criminal proceedings that have been 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 or any other authority or person.”

And section 191(2) empowers the Attorney-General to exercise the powers conferred on him by section 191(1) by himself or through officers of his department. Section 191(1) of the 1979 Constitution has already been interpreted by this Court in its several decisions but see particularly The State v. Ilori AND OTHERS (1983) 2 S.C. 155.

It is not the contention of the learned Counsel for the appellant that the Director of Public Prosecutions is not an officer in the department of Attorney-General. The fact that there was no compliance with section 18(ee) of Law No. 19 of 1974 did not invalidate the information filed in the High Court by the learned Director of Public Prosecutions. It is saved by section 180j) of the law and which replaces section 340(2) of the Criminal Procedure Law, Cap. 31. The amended section 18(jj)(2) provides thus –

“(2)   Subject as herein after provided no information charging any person with an indictable offence shall be preferred unless either –

(a)     the information is preferred after the preparation of the proof of evidence in the charge or

(b)     the information is preferred pursuant to an order made under part XXI to prosecute the person charged for perjury, or

(c)     the information is preferred in cases other than those mentioned in paragraphs (a) and (b) above where because of the special circumstances of such cases the Attorney-General considers that information should be filed without recourse to the procedure referred to in paragraph (a) above –

Provided that the information is preferred after preparation of the proofs of evidence it may include either in substitution for or in addition to counts charging the offence for which the proofs of evidence founded on facts or evidence disclosed in the proofs of evidence being counts which may lawfully be joined in the same information.”

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. The fundamental rights of the appellants vis-à-vis fair hearing is in no way tampered with by the procedure adopted in his case.

Both sections 18(ee) and 18(jj) supra do not specifically state that before an in-formation is filed in the High Court, the proceedings in the lower Court must first be terminated. Section 18(ee) particularly speaks of a stop of the pending proceedings in the Magistrate’s Court, which means termination. To adjourn a case sine die and transfer documents involving in the proceedings to the Director of Public Prosecutions for the latter to take appropriate action is at the highest in my opinion tantamount to a stay of proceedings. This is why I said earlier on that section 18(ee) of Law No. 19 of 1974 was not complied with.

On the complaint as regards double jeopardy and abuse of process, I agree with Aseme, J.C.A., in the lead judgment where he said –

“The Defence has alleged in ground 6 of the objection that “the information filed on the same facts is an abuse of process and exposure of the accused to double jeopardy”, but this is a misconception. Double jeopardy arises in a situation where a person is purported to have been tried twice. Abuse of process means to set up in any way a case which has already been decided by a court of competent jurisdiction. Jowit Laws as English Law further defines Abuse of process as actions manifestly frivolous brought against good faith. See Edmunds v. Attorney- General (1978) L.J. Ch. 345.”

The case of Onu Okafor v. The State (1976) 5 S.C. 13 is not directly opposite to the situation and facts of this case, for in that case what was in issue was non-compliance with section 18(jj) of Law No. 19 of 1974 which is not the case here. No substantial miscarriage of justice has been caused to the appellants in the present case – Sylvester Oghoma v. The State (1985) 2 S.C. 289. The appeal fails and it is dismissed.

NNAMANI, J.S.C.: I had a preview of the judgment just delivered by my learned brother Wali, J.S.C. and I agree with his conclusions.

The facts of this case, which are not really in dispute, have been set down by my learned brother and I need not repeat them except such of them as I need for this concurring comment.

In the appeal in this Court, learned Senior Advocate for the appellants, Mr. Ikeotunonye, set down 3 issues for determination. I intend to deal with only issues 1 and 2.

These were in the following terms:

“1.     Whether the Court of Appeal is right in holding that on the facts before it that the information filed in the High Court of the Owerri Judicial Division against the appellants and others who had elected to be tried summarily complied with the mandatory provisions of Section 18(ee) of Law No. 19 of 1974. 2. Whether the Court of Appeal is right in holding that the prosecution com-plied substantially with the relevant provisions of Edict No. 19 of 1974?”

The argument in this Court was centred on the provisions of Edict No. 19 of 1974 i.e. the Criminal Procedure (Miscellaneous Provisions) Law No. 19 of 1974 which by virtue of Section 274 of the 1979 Constitution was an existing law in 1984 when this matter started in an Owerri Magistrate’s Court. One has to look at Sections 18(e)(e) and 18(jj). Section 18(e)(e) provides as follows:

“A law officer, where any charge of an indictable offence is being proceeded with summarily by a magistrate under the provisions of this part may at any time before the decision thereof, by order in writing under his hand, require such magistrate to stop further proceedings and to transfer the case to another magistrate within the same Chief Magisterial district or to transmit the case file and all statement and documents mentioned in Section 7 of the Criminal Procedure (Miscellaneous Provisions) Edict, 1974, made or tendered during the hearing to the Attorney-General for the purpose of preparing the proofs of evidence in respect of the charge with a view to preferring an information.”

The accused persons were first arraigned before the Chief Magistrate Court, Owerri on 22nd February, 1984. After several adjournments, the suit came up for hearing on 18th January, 1985. On that date it is recorded thus:

“Prosecution informs Court that the case file is still with the Director of Prosecutions who called for it.”

Following which the learned Chief Magistrate made the following order:

“Director of Public Prosecutions should prosecute the case as it seems the file is not coming back and it is not fair for the parties to continue wasting time in this Court. The original case file or any other document relating to this case be transmitted to Director of Public Prosecutions for necessary action. Inventory of Exhibits to be also forwarded. Case adjourned sine die.”

In the course of the case it was claimed by the Respondent that a letter dated 2nd October, 1984 was sent by the Director of Prosecutions, Imo State to the Chief Magistrate. The letter was in these terms:

2nd October, 1984

‘The Chief Magistrate, Chief Magistrate’s Court, Owerri.

OW1299CI84: Compol Vs Ishmael Amaefule and Ors

Pursuant to Section 18(ee) and 18(jj)(2)(c) of Criminal Procedure Miscellaneous Provisions Edict No. 19 of 1984, I ask that the proceedings of the above named case be stopped and the case file and all statements or documents tendered during the proceedings be transferred to the Attorney-General for the purpose of preparing Proofs of Evidence in respect of the charges(s) with a view to preferring an information.

Sgd. J.C. Njoku, Director of Public Prosecutions”

On 14th August, 1986, the Attorney-General of Imo State filed an information against 4 accused persons, not against 5 other persons charged with them in the Magistrate Court. The total number of the counts on the information was ten as against the six in the Magistrate Court. Learned Senior Advocate then filed a motion to quash the information. This was refused by the High Court and the Court of Appeal, hence the appeal to this Court.

The main contention of Mr. Ikeotbonye is that Exhibit B was an afterthought and was never sent to the Chief Magistrate. There was therefore no compliance with Section 18(ee) of Law No. 19 of 1974. He further contended that for an information to be properly filed against the appellants who did not elect to be tried in the High Court, the proceedings in the Magistrate’s Court must be terminated in strict compliance with the provisions of Section 18(ee) of Law No. 19 of 1974.

It seems quite clear to me that the letter Exhibit B could not have reached the Chief Magistrate on 18th January 1985, when she finally dealt with this case. If she had seen that letter, it would have been strange in the extreme for her to be informed on that day that the Director of Public Prosecutions still had the case file. She also would not have made the order in the terms in which she made it. I am of the view, therefore, that the order she made was not in compliance with Section 18(e)(e) of Law No. 19 of 1974. The result is that the case was never terminated in the Magistrate’s Court and is pending there. To this extent the point made by the learned Senior Advocate is well taken. The Court of Appeal in my view was in serious error in holding that there had been substantial compliance with Section 18(ee) of Law No. 19 of 1974.

But this is by no means the end of the matter. The further question which arises for consideration is whether the situation I have stated automatically means that the information filed by the Attorney-General must be quashed. It is at this stage that one has to have recourse to the provisions of Section 191 of the Constitution of the Federation Republic of Nigeria, 1979. Sub- Sections (1) and 3 of that Section provide as follows:

“(I)    The Attorney-General of a State shall have power (a) to institute and under-take 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 law of the House of Assembly –

(3)     In exercising his powers under this Section the Attorney-General shall have regard to the public interest, the interests of justice and the need to prevent abuse of legal process”

Although in the course of argument, both learned counsel were of the view that under this section the power of the Attorney- General to file an information could not be questioned and that nothing in Edict No. 19 of 1974 could derogate from that power, I find it necessary to examine the issue more closely. At common law, the power of the Attorney-General to institute and discontinue criminal proceedings was quite wide and his exercise of such powers was largely unfettered. It is one within his province. Although in State v. S.O. Ilori and 2 AND OTHERS (1983) 2 S.C. 155 this Court was mainly concerned with the entry of a nolle prosequi, this Court took the opportunity to examine the true meaning of Section 191 of the 1979 Constitution, particularly subsection 3 thereof. Apart from noting the extremely wide powers conferred on the Attorney-General by that section of the Constitution, this Court was of the view that it merely restated the position of the Attorney-General at common law and in the 1960 and 1963 pre – 1979 Constitutions of Nigeria. It is pertinent too to note that in stating the proper meaning and import of Subsection 3 of Section 191, this Court was of the view that this applied to the whole of Section 191 not just to subsection 1(b) which dealt with nolle prosequi with which it was concerned. It would be useful to take few passages from the judgment of this Court in that case so as to underline the extensive powers to institute and discontinue proceedings which the 1979 Constitution deliberately vested on the Attorney-General.

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 preeminent 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 in a party, 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 him-self, law unto himself, and under no control whatsoever, judicial or otherwise, vis-à-vis his powers of instituting or discontinuing criminal proceedings.”

In that suit, it was contended that the provisions of subsection 3 of Section 191 of the 1979 Constitution were in effect a pre-condition to the exercise of the powers of the Attorney-General, or in another sense that they raise a rebuttable presumption which an aggrieved person can seek to rebut impugning the exercise of those powers in proceedings in a Court., This Court resolutely rejected both notions. In its view, the matters in Subsection 3 of Section 191 were matters which the Attorney-General was to have regard to in the exercise of his powers under Section 191. The sanction for any failure to abide by those matters did not lie in any re-view by the Courts but in the adverse opinion of public opinion and his ultimate removal by his appointor. Again in the words of Eso, J.S.C. at page 186,

“in other words, under the provisions of sub-section (1) of Section 191 of the 1979 Constitution, the Attorney- General, as the period before the 1979 Constitution, still has an unquestioned discretion in the exercise of his powers to institute or discontinue criminal proceedings. His common law pre-eminent and incontestable position in this regard is still preserved by that provision and notwithstanding sub-section (3) thereof, which is a restatement of the law up to 1979, he is still not subject to any control, in so far as the exercise of his powers under Section 191 of the Constitution is concerned, and except for public opinion, and the reaction of his appointor, he is still, in so far as the exercise of those powers are concerned, law unto himself. To my mind therefore, subsection (3) of 191 of the 1979 Constitution has in no way altered the pre-1979 Constitution position of the Attorney- General”.

He continued at page 189,

“With respect, I do not share the view of Kazeem, J.C.A. where the learned Justice said that “whenever an aggrieved person complains of an infraction of his fundamental right and that the Attorney-General has failed to have regard for those safeguards in exercising his powers, and he can successfully prove it …………….. the courts in this country in exercise of their wide powers under Section 6(6)(b) of the 1979 Constitution can inquire into such complaint and grant appropriate remedies.” With great respect, the Court of Appeal is in complete misconception of the provision of sub-section (3) of Section 191 of the 1979          Constitution ………………………………………………………..

In my own contribution at page 205, I expressed the view which I still hold that –

“I do not think that any rebuttable presumption [such as was decided by the Federal Court of Appeal in The State vs. Adokole Akor and OTHERS (1981) 2 N.C.L.R. 710] arises with respect to the matters set down in Section 191(3) of the 1979 Constitution. I think that the matters set down in that section of the Constitution are matters which the Attorney-General ought to take into consideration in exercising his powers therein and I cannot put it higher than an assumption that he has duly considered them.”

I am of the view that the far reaching opinion of this Court on the import of Sub-section 3 of Section 191, whatever may be the position at Common Law, puts the exercise of the powers of the Attorney-General under Section 191 outside the powers of the courts. In this connection, I draw no distinction between the decision to exercise those powers and the manner in which it has been exercised. If the Attorney-General in exercising his powers under Section 191 (1) (a), i.e. institution of proceedings, commits abuse of legal process, it would seem to me that if the Courts cannot review the matters he is supposed to have had regard to under Sub-Section 3 of Section 191, the only sanction would be his removal by his appointor.

To return to the instant suit, 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.

In the course of writing this concurring judgment, my attention was drawn to Section 72 of the Criminal Procedure Law, Cap. 32 Laws of Eastern Nigeria 1963 applicable to Imo State. That section provides as follows:

“Notwithstanding anything in this Law contained the Attorney-General may exhibit to the High Court information for all purposes for which His Majesty’s Attorney-General for England might have, before the enactment of the Crown Proceedings Act 1947, exhibited information in the High Court of Justice in Eng-land.

2. Such proceedings may be taken upon every such information as could law-fully be taken in the case of similar information filed in England by the Attorney-General of England so far as the circumstances of the case and the practice and procedure of the High Court will admit”

It seems that this Section of the Criminal Procedure law was not amended by the Criminal Procedure (Miscellaneous) Provisions Edict No. 19 of 1979 although the terms of Section 72 of Cap. 31 seem to be in conflict with Section 18(jj) of the Edict. Indeed it would appear that Sections 18(ee) and 18Qj) of the Edict were in-tended to supercede that Section of the law. Section 18Qj) of the Edict replaced Section 340(2) of Cap. 31 and reads as follows:

(2)     “Subject as hereinafter provided, no information charging any person with an indictable offence shall be preferred unless either –

(a)     the information is preferred after the preparation of proof of evidence in the charge, or

(b)     information is preferred pursuant to an order made under Part XXXI to prosecute the person charged for perjury, or

(c)     the information is preferred in cases other than those mentioned in paragraphs (a) and (b) above where because of the special circumstances of such basis the Attorney-General considers that the information should be filed without recourse to the procedure referred to in paragraph (a) above; provided that where the information is preferred after the proof of evidence         ………………………..”

It is fairly settled that in matters of procedure recourse will only be had to the practice in England where there is no statutory provision covering the particular matter in this country. I do not think that in the face of Sections 18(ee) and 18(jj)(2)(c) of Edict No. 19 of 1974 applicable in Imo State, Section 72 of Cap. 31 was still applicable.

In any case, because of the view I have taken of the extent of the Attorney-General’s powers to institute criminal proceedings as provided in Section 191 of the Constitution, neither Section 18(ee) nor Section 72 of Cap. 31, even if it is still applicable, can derogate from those powers. Accordingly, I hold that the information filed by the Attorney-General is by virtue of Section 191 of the Constitution, and perhaps Section 1801) of Edict No. 19 of 1974, valid. The point taken by the learned Senior Advocate for the appellants, is well taken, but the appeal is dismissed. The judgment of the Court of Appeal is affirmed but for different reasons. I hereby order the Attorney-General of Imo State to take immediate steps to with-draw the charge pending in the Chief Magistrate’s Court of Owerri against the appellants herein.

OPUTA, J.S.C.: I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother Wali, J.S.C.

Is this case just an example of “much ado about nothing”, just another mighty judicial storm in a small procedural tea cup? Or is it substantial in the sense that it calls for a hard look at the powers of the Attorney-General to initiate proceedings and circumstances under which the exercise of those powers can success-fully be questioned? The facts do not seem to be in dispute as the respondent’s Brief would seem to suggest. The respondent filed its Brief before receiving the appellant’s Brief. This is rather a queer and awkward procedure. A respondent’s Brief is usually an answer to the appellant’s Brief. Can anyone answer to that which he has not even seen? I suppose not. But having put the cart before the horse, learned counsel for the respondent could have done better if she filed a Reply Brief. But she did not. I shall therefore rely on the appellant’s Brief for the correct statement of the facts. Those facts are as follows:

1. On the 22nd of February 1984, the Appellants and 5 others were arraigned before the Chief Magistrate Court Owerri on a six count charge of conspiracy, stealing, forgery and destroying evidence.
2. Before the Chief Magistrate the Appellants and the other accused persons exercised their right of election. Each elected summary trial before the Chief Magistrate. Their case was thus properly pending before the Chief Magistrate Court with effect from the 22nd February 1984 – the date of arraignment.
3. On the 18th January 1985 the learned trial Court Magistrate adjourned the case properly pending before her sine die made the following notes – “Prosecution informs Court that the case is still with the Director of Public Prosecutions who called for it. Director of Public Prosecutions should prosecute the case as it seems the file is not coming back and it is not fair for the parties to continue wasting time in this Court. The original case file or any other document relating to this case be transmitted to the Director of Public Prosecutions for necessary action. Inventory of Exhibits to be also forwarded”. [Italics mine to emphasise (if not the letter) the spirit of the order made by the Chief Magistrate].
4. On the 18th November 1985, the appellants were arraigned before the High Court Owerri on an information filed by the Attorney-General. No plea was taken as the 3rd accused was not present in Court.
5. On the 28th of November 1985, all the accused persons except the 3rd accused were present in Court. Because of this the Court cancelled the bail it granted earlier on to the appellants.
6. After a number of applications the High Court granted bail to the appellants.
7. On the 14th August, 1985 the Attorney-General of Imo State filed an information against the appellants. It is not in dispute that “some of the charges repeated the same offences for which the Appellants were arraigned in the Chief Magistrate’s Court” (see p.3 lines 12-13 of record of proceedings).
8. Before plea was taken in the High Court the appellants filed a motion on notice to quash the information filed on the 14th August 1985 on the ground that it offended against S.18(ee) of the Criminal Procedure (Miscellaneous Provisions) Law No. 19 of 1974.
9. The learned trial Judge, Chianakwalam, J. on 27/2/86 over-ruled and dismissed the objections of the appellants holding that “they are wholly devoid of substance and merit.
10. The appeal of the appellants to the Court of Appeal Enugu Division against the ruling of Chianakwalam, J. of 27/2/86 was dismissed on 2nd day of June 1987.”

The appellants have now appealed to this Court on two grounds of error in law. Mr. Ikeotuonye, S.A.N. for the appellants submitted two Issues for Determination namely:

(1)     Were the proceedings in the Chief Magistrates’ Court Owerri terminated before the Attorney-General filed his information against the appellant?

(2)     If the answer to Issue No. 1 above is No – Does the information so filed constitute an abuse of process?

Issue No. 1

It is common ground that:

(i)      The appellants were arraigned before the Chief Magistrates’ Court Owerri.

(ii)     That in the said Court the appellants were put to their election and each exercised his constitutional right of election and each elected summary trial before the Chief Magistrate.

Under Section 191(1) of the 1979 Constitution as amended, the Attorney-General of Imo State had the right to take over and continue Charge HOW/57C/85 then pending before the Chief Magistrate or else discontinue same. If Charge HOW/57C/85 were discontinued, it ought to so appear on the record. It is therefore safe to assume that the Attorney-General of Imo State did not exercise his power under SA 91(1) of the 1979 Constitution either to take over and continue the prosecution of Charge No. HOW/58C/85 or else discontinue it.

There is however a counter-affidavit sworn to by one Ndukwe Agwu, Senior Clerical Officer, Ministry of Justice, Owerri purporting to show that a letter dated 2nd October, 1984 signed by the Director of Public Prosecutions was addressed to the Chief Magistrate in compliance with the provisions of Section 18(ee) of the Criminal Procedure (Miscellaneous Provisions) Law No. 19 of 1974. Section 18(ee) above provides as follows:

S.18(ee) “A law officer, where any charge of an indictable offence is being proceeded with summarily by a Magistrate under the provisions of this part may, at any time before the decision thereof, by order in writing under his hand, require such Magistrate to stop further proceedings and to transfer the case to another Magistrate within the same Chief Magisterial district or to transmit the case file and all statements and documents mentioned in Section 7 of the Criminal Procedure (Miscellaneous Provisions) Edict, 1974 made or tendered during the hearing, to the Attorney-General for the purpose of the proofs of evidence in respect of the charge with a view to preferring an information.”

What, may I ask, is the purpose of Section 18(ee) above? Is it not the desirability of terminating the criminal prosecution in one Court before prosecuting the same persons on the same or identical offences in another Court? It will look a bit more tidy to end the proceedings in one Court before starting fresh proceedings in another Court.

The question that should now be asked: Were the proceedings in Charge No. HOW/57C/85 terminated by Exh. B? The answer from the record of proceedings before the Chief Magistrate is No. The case was merely adjourned sine die. A case adjourned sine die is still pending before the Court that adjourned it. Exhibit B (even if the original was tendered) contained merely a request “that the proceedings of the above-named case be stopped”. Exhibit B is not proof that the proceedings were in fact stopped. It is therefore beyond doubt that the criminal proceedings against the appellants are still pending in the Chief Magistrate’s Court Owerri and were pending when the information charging the appellants along with others with the same or similar offences in the High Court was preferred. One effect of this is to nullify the election of the appellants to be tried summarily or to proceed against them in two different Courts at one and the same time for the same offences. It is under the shadow of the above that Issue No. 2 ought to be considered.

Issue No. 2

Was the information filed in the High Court in this case during the pendency of charge No. HOW/57C/85 an abuse of process?

No one is doubting the very wide powers of the Attorney-General of a State under Section 191(1) of the 1979 Constitution. But just because the powers are very wide that itself, is all the more reason why their exercise should be carefully watched. All proceedings in poenam are strictissimi juris and where a particular procedure has been provided by law, that procedure should be strictly adhered to. And a party accused has the right to insist on that particular procedure as a matter of right which he cannot be deprived against his will: see Cockburn, C.J. in Martin v. Mackonochie (1878) L.R. 3 Q.B. 775. Can the Attorney-General deprive the appellants of that right by filing (simultaneously and along with the pending charge in the Magistrates’ Court) a fresh information, will that not be an abuse of process?

Abuse of Process:

Abuse of process of the Court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive? Abuse of process can also mean abuse of legal procedure or improper use of legal process. There is nothing on record to suggest that the Attorney- General of Imo State in preferring the information, the subject- matter of this appeal, acted from improper motives or was wanting in bona fides. No. It can be argued that the information is frivolous and vexatious. But is it not “oppressive” if not in fact at least in law to deprive the appellants their right of election by filing the information not in accordance with Section 18(ee) of the Criminal Procedure (Miscellaneous Provisions) Law No. 19 of 1974 which should have properly terminated Charge No. HOW/57C/85 and with it the election of the appellants to be tried summarily? The answer to the above question will surely depend on whether abuse of process has in any event to contain the absence of bona fides as its fundamental element. On very careful consideration, I am forced to the conclusion that to amount to an abuse of process the proceeding or step in the proceeding complained of, will, in any event, be lacking in bona fides; it has to be an improper use or perversion of process after it had been issued. The term abuse of process has an element of malice in it. It thus has to be a malicious perversion of a regularly issued process civil or criminal, for a purpose, and to obtain a result not lawfully warranted or properly attainable thereby. These elements are completely lacking here.

The case of The State v. S.O. llori AND OTHERS (1983) 1 S.C. N.L.R. 94 and A-G. Kaduna v. Hassan (1985) 2 N.W.L.R. 483 have been mentioned by the Court of Appeal. Hassan’s case supra does not seem to supply the answer to the solitary question posed in this appeal – Was the information now complained of an abuse of process simply because the proceedings in the Chief Magistrates’ Court were still pending? Hassan’s case dealt inter alia with the question of whether in the absence of an incumbent Attorney-General, the Solicitor- General of a State could exercise the powers which 191 of the 1979 Constitution reserved solely for the Attorney-General. The answer of this Court was that the Solicitor-General without specific delegation from the Attorney-General could not exercise any of the powers of the Attorney-General under Section 191 of the 1979 Constitution. If therefore there was no Attorney- General there will be no one to make the necessary delegation.

It is however Ilori’s case supra that deals directly with the issue for determination in this appeal. Ilori decided ‘that the test to be adopted under sub-section 3 of Section 191 of the 1979 Constitution as indeed at Common Law is a subjective one i.e. it is the exercise of the discretion of the Attorney- General according to his own judgment.” We have to assume that the Attorney-General in exercising his powers under Section 191(1) and (ii) of the 1979 Constitution first and foremost heeded to and took into consideration Section 191(3) of the 1979 Constitution. We have not in this appeal been invited to review and over-rule the decision in Ilori’s case supra. With Ilori supra as the law at present, then the appellants’ attack on the information filed by the Attorney-General in this case can hardly be sustained. The appeal must therefore fail. I must however observe that the point taken by Iketuonye, S.A.N. was well taken but that it could not and did not invalidate the information now pending at the Owerri High Court.

The final result is that they are two cases pending against the appellants viz:

(i)      Charge HOW/57C/85 pending in the Chief Magistrates’ Court Owerri and;

(ii)     The information filed in the High Court Owerri.

The Attorney-General has now to decide which of these he will be prosecuting. The likelihood however is that the charge in the Magistrates’ Court will be with-drawn properly and the information in the High Court proceeded with.

For the reasons given above and for the fuller reasons given in the lead judgment by my learned brother Wali, J.S.C. which I now adopt as mine, this appeal fails and should be dismissed. It is hereby dismissed. The judgment of the Court of Appeal, Enugu Division is hereby affirmed.

AGBAJE, J.S.C.: I have had the opportunity of reading in draft the lead judgment of my learned brother Wali, J.S.C. I agree with him that this appeal should be dismissed. For emphasis I would like to make the following contribution to the lead judgment. The appellants were two of the five persons arraigned before a Chief Magistrates’ Court, Owerri, Imo State on a six count charge on 22nd February, 1984. All the offences included in the charge were indictable offences. The appellants and the other accused persons elected summary trial in the Chief Magistrate’s Court. Actual trial of the case did not begin in that court. In October, 1985, the Director of Public Prosecutions Imo State evinced an intention to terminate the proceedings against the appellants and the others in the Chief Magistrate Court. So there was a letter Exh. B written by the said Director of Public Prosecutions. Exh. B reads thus:

“DPP/25Nol.4/189B        2nd October, 1984 The Chief Magistrate,

Chief Magistrate’s Court, Owerri.

OW/299c/84: COMPOL Vs. ISHMAEL AMAEFULE AND OTHERS Pursuant to Section 18(ee) and 18(jj)(2)(c) of Criminal Procedure Miscellaneous provisions Edict No. 19 of 1974, I ask that the proceedings of the above named case be stopped and the case file and all statements or documents tendered during the proceedings be transferred to the Attorney-General for the purpose of preparing Proofs of Evidence in respect of the charges(s) with a view to preferring an information.

Sgd. J.C. Njoku DIRECTOR OF PUBLIC PROSECUTIONS”

This is the document referred to as Exh. “B” in paragraph 5 of the affidavit of Ndukwe Agwu.

Paragraph 5 of the affidavit of Ndukwe Agwu read:

“5.     That I was also instructed by the Director of Public Prosecutions to dispatch a letter relating to the above-named case to the Magistrate calling for the case file for preparation of the Proofs of Evidence for filing of information in the High court. A copy of the letter dated 2nd October, 1984 and signed by the Director of Public Prosecutions is hereto annexed and marked EX-HIBIT “B”.”

There is dispute as to admissibility of Exh.B and as to whether the counter part of Exh.B was sent to the Chief Magistrate to whom it was addressed. It is clear that Exh. B was executed by its writer. Section 93(2) of the Evidence Act says where a document has been executed in several parts each part shall be primary evidence of the document. So Exh. B, is primary evidence. Although it is a public document the need to adduce secondary evidence of its contents by producing certified true copy of it alone does not arise. For as I have just said the primary evidence of the document in question was given by the production of Exh. B. It was not clear on the printed evidence that the counter-part of Exh. B was received by the Chief Magistrate to whom it was addressed.

On 18th January, 1985 the learned Chief Magistrate handling the case made the following record as to what happened in court in that day as regards the criminal proceedings:

“Prosecution informs court that the case is still with the Director of Public Prosecutions who called for it. Director of Public Prosecutions should prosecute the case as it seems the file is not coming back and it is not fair for the parties to continue wasting time in this Court. The original case file or any other document relating to this case be transmitted to Director of Public Prosecutions for necessary action. Inventory of Exhibits to be also forwarded. Case adjourned sine die.

(Sgd.) R.A. Wilson (Mrs) Chief Magistrate 18/1/85.”

In November, 1985 an information was filed against the appellants and two others in respect of the self same offences with which they were charged in the Chief Magistrate’s Court and to which I have referred above. Before the pleas of the appellants and the others were taken and sometime after 18th November, 1985 Counsel for the appellants brought an application to quash the information filed against the accused persons by the Attorney- General in the High Court on the ground that there was non compliance with the provisions of Section 18(ee) of the Criminal Procedure (Miscellaneous Provisions) Edict No. 19 of 1974 hereinafter called the 1974 Law applicable to Imo State before the information against the appellants and the others was filed. The trial court refused to quash the information. The appellants appealed unsuccessfully against the refusal of the High Court to quash the information to the Court of Appeal Enugu Division. This is a further appeal against the refusal of the trial court to quash the information against the appellants.

Before I set down the issue arising for determination in this appeal I should set down the provisions of Section 18(ee) of the 1974 Law. They are:

“A law officer, where any charge of an indictable offence is being proceeded with summarily by a Magistrate under the provisions of this part may at any time before the decision thereof, by order in writing under his hand, require such Magistrate to stop further proceedings and to transfer the case to another Magistrate within the same Chief Magisterial district or to transmit the case file and all statement and documents mentioned in Section 7 of the Criminal Procedure (Miscellaneous Provisions) Edict, 1974, made or tendered during the hearing, to the Attorney-General for the purpose of preparing the proofs of evidence in respect of the charge with a view to preferring an information.”

I have said earlier on that the Director of Public Prosecutions by Exh. B evinced the intention to terminate the proceedings in the Chief Magistrate’s Court. The Director of Public Prosecution acted in part under Section 18(ee) of the 1974 Law in writing Exh. B. I have also said there is dispute as to whether Exh. B was conveyed and/or received by the Chief Magistrate as contended for by the respondent and denied by the appellants. However one thing is clear from the Record of the Proceedings of 18th January, 1985 in the Chief Magistrate’s Court reproduced above: there was no reference to Exh. B therein. And what is more the proceedings in the Criminal Proceedings in question were adjourned sine die. To that extent it cannot be said that the said proceedings in that court had been stopped or terminated under the provisions of Section 18(ee) of the 1979 Law.

Having held as I have just done the issue arising for determination in this appeal boils down in my view to this – whether the criminal proceedings pending against the appellants in the Chief Magistrate’s Court precluded the Attorney-General from initiating criminal Proceedings in the High Court by information filed in that court in respect of the same offences to which the charge in the Chief Magistrate’s Court related. This necessarily takes me to the consideration of the powers of the Attorney-General as regards instituting and undertaking criminal proceedings. In this regard we have Sections 72(i) AND (ii), 77, 340 of the Criminal Procedure Law Cap. 31 in Volume 2 of the Laws of Eastern Region 1963 Edition applicable in the East Central State (now Anambra AND Imo States) hereinafter called the Criminal Procedure Law. They read as follows:

“Section 72(1) Notwithstanding anything in this Ordinance contained the Attorney-General in each Region may exhibit to the High Court for all purposes for which the Attorney-General for England may exhibit information in the High Court of Justice in Eng-land.

(2)     Such proceedings may be taken upon every such information as may lawfully be taken in the case of similar information filed by Her Majesty’s Attorney-General for England so far as the circumstances of the case and the practice and procedure of the High Court will admit.

77. Subject to the provisions of any other ordinance or any Law criminal proceedings may in accordance with the provisions of this Ordinance be instituted –

(a)     in Magistrates’ courts on a complaint whether or not on oath, and

(b)     in the High Court –

(i)      by information of the Attorney-General of a Region in accordance with the provisions of Section 72, and

(ii)     by information filed in the court after the accused has been summarily committed for perjury by a Judge or Magistrate under the provisions of Part XXXI, and

(iii)    by information filed in the court after the accused has been committed for trial by a Magistrate under the provisions of Part XXXVI, and

(iv)    on complaint whether on oath or not.”

340(1) Subject to the provisions of this section an information charging any person with an indictable offence may be preferred by any person before the High Court charging any person with an indictable offence for which that person may lawfully be indicted, and wherever an information has been so preferred the registrar shall, if he is satisfied that the requirements of the next following section have been complied with, file the information and it shall thereupon be proceeded with accordingly: Pro-vided that if the registrar shall refuse to file an information, a Judge, if satisfied that the said requirements have been com-plied with, may, on the application of the prosecutor or on his own motion, direct the registrar to file the information and it shall be filed accordingly.

(2)     Subject as hereinafter provided no information charging any person with an indictable offence shall be preferred unless either –

(a)     the person charged has been committed for trial; or

(b)     the information is preferred by the direction or with the con-sent of a Judge or pursuant to an order made under Part XXXI to prosecute the person charged for perjury.

Provided that –

(i)      where the person charged has been committed for trial, the in-formation against him may include either in substitution for or in addition to the counts for charging the offence for which he was committed, any counts founded on facts or evidence disclosed in any examination or deposition taken before a magistrate in his presence, being counts which may lawfully be joined in the same information;

(ii)     a charge of a previous conviction of an offence or of being an habitual criminal or of being an habitual drunkard may, notwithstanding that it was not included in the committal or in any such direction or consent as aforesaid, be included in the information.

(3)     If an information preferred otherwise than in accordance with the provisions of the last foregoing subsection has been filed by the registrar in the information shall be liable to be quashed: Provided that –

(a)     if the information contains several counts, and the said provisions have been complied with as respects one or more of them, those counts only that were wrongly included shall be quashed under this section; and

(b)     where a person who has been committed for trial is convicted on any information or on any count of an information, that information or count shall not be quashed under this section in any proceedings on appeal, unless application was made at the trial that it should be so quashed.”

Reference should also be made to Section 18(jj) of the 1974 Law which reads thus:

“(2)   Subject as hereinafter provided no information charging any person with an indictable offence shall be preferred unless either –

(a)     the information is preferred after the preparation of the proof of evidence in the charge, or

(b)     the information is preferred pursuant to an order made under part XXXI to prosecute the person charged for perjury, or

(c)     the information is preferred in cases other than those mentioned in paragraphs (a) and (b) above where because of the special circum-stances of such cases the Attorney-General considers that an information should be filed without recourse to the procedure referred to in paragraph (a) above: Provided that where the information is preferred after the proofs of evidence ………

The constitutional powers of the Attorney-General as regards initiation of criminal proceedings must also be borne in mind. Since we are dealing with the Attorney-General of the State the relevant constitutional provisions will be found in Section 191 of the 1979 Constitution of the Federal Republic of Nigeria 1979, here-in-after called the 1979 Constitution which provides as follows:

“191  (1) The Attorney-General of a State shall have power –

(a)     to institute and undertake criminal proceedings against any per-son before any court of law in Nigeria other than a court- martial in respect of any offence created by or under any Law of the House of Assembly;

(b)     to take over and continue any such criminal proceedings that may have been 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)     The powers conferred upon the Attorney-General under subsection (1) of this section may be exercised by him in person or through officers of his department.

(3)     In exercising his powers under this section the Attorney-General shall have regard to the public interest, the interests of justice and the need to prevent abuse of legal process.”

Again the fundamental right of every person to personal liberty as enshrined in the 1979 Constitution must also be borne in mind. This is what Section 32 sub-section t of the 1979 Constitution says in this regard:

“32(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law –

(a)     in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty.”

(b)     to (f) and sub-sections 2 and 7 are not relevant to the point I am now considering.

Because of the provisions of Section 306 of the Criminal Procedure Law which says:

“A law officer in the case where any charge of an indictable offence is being proceeded with summarily by a Magistrate under the provisions of this Part made, at any time before the decision thereof, by order in writing under his hand, require such magistrate to deal with the same as one for trial and indictment and on receipt of such requisition the magistrate shall deal with such case accordingly.”

the mere fact that an accused person is charged before a Magistrate’s court with an indictable offence and has elected that the case should be dealt with summarily in that court does not mean that that case can no longer be dealt with as one for trial on indictment. I cannot find anything in Section 33 of the 1979 Constitution which says a right is therein reserved to an accused person to elect whether to be tried summarily in the Magistrate’s Court or on indictment in the High Court in respect of an indictable offence. So I reject the submission of this regard in the appellants brief of argument.

Because of the provisions of Section 32 sub-section t (a) of the 1979 Constitution to which 1 have referred to above, the powers entrusted by 1979 Constitution to an Attorney-General as regards instituting and undertaking criminal proceedings against any power which procedure permitted by law.

Section 191 of the 1979 Constitution gives the Attorney-General of the State the power to institute and undertake criminal proceedings against any person before any court of law of Nigeria other than a court-martial in respect of any offence created by or under any law of the House of Assembly. Once the offences to which the criminal proceedings relate are in respect of offences created by or under the law of the House of Assembly, as it is the case here, the only other Constitutional provision which an Attorney-General must follow in my view in exercising his powers under Section 191 of the 1979 Constitution is that which says that the criminal proceedings must be undertaken in accordance with a procedure permitted by law. See again Section 32 1(a) of the 1979 Constitution.

The Criminal Procedure Law and the 1974 Law are both of them, existing laws within the provisions of Section 274 of the 1979 Constitution as amended. So in my judgment the Attorney-General of a State must comply with the procedures laid down in these legislations as regards preferring an information in the High court in a state in respect of indictable offences. I have referred above to the relevant provisions of the Criminal Procedure Law and the 1974 Law in this regard.

Because of the provisions of Section 191 of the 1979 Constitution it will not be right in my view to construe Section 72 of the Criminal Procedure Law as limiting the powers of the Attorney- General of a State as regard exhibiting to the High court information to all purposes for which the Attorney-General in England may exhibit information in the High Court of Justice in England. I say this because section 191 of the Constitution has specifically provided that the Attorney-General of a State shall have power 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 law of the House of Assembly. In my judgment the power given under Section 191 (1) (a) of the Constitution to the Attorney-General of a State cannot be withheld down by reference to the powers which the Attorney-General in England could exercise whilst initiating or undertaking criminal proceedings.

In my judgment Section 72 of the Criminal Procedure Law must be read subject to the provisions of Section 191 of the 1979 Constitution. So, if this is done, Section 72(1) of the Constitution will mean notwithstanding anything in the Criminal Procedure Law contained the Attorney-General in each region may exhibit to the High court information in respect of any offence created by or under the law of the House of Assembly. However, in preferring the information the procedure permitted by law will be those provided for in Section 77, Section 340 of the Criminal Procedure Law and Section 18(jj) of the 1974 Law.

On the authority of Onu Okafor v. The State (1976) S.C. 13 an information filed by an Attorney-General and not in accordance with the provisions of these sections will no doubt be quashed.

Section 18(ee) of the 1974 Law gives, in my view, power to a law officer to stop proceedings in respect of an indictable offence being dealt with summarily in a Magistrate Court and to obtain from that court material for the purpose of preparing proofs of evidence in the charge to be preferred on an information in the High Court in respect of the indictable offence. It does not say that no information shall be preferred in respect of an indictable offence being dealt with summarily unless the provisions of the said Section 18(ee) have first been complied with. So in my judgment section 18(ee) has not laid down a condition precedent for the commencement of criminal proceedings in the High Court by the process of prefer-ring an information in respect of an indictable offence being dealt summarily in a Magistrate’s Court. So failure by an Attorney-General to comply with the provisions of Section 18(ee) of 1974 Law before preferring an information in respect of such an indictable offence will not in my judgment mean that for that reason alone the information has not been preferred in accordance with the procedure permitted by law.

In the instant case there is clear evidence that Attorney-General intended and has in fact taken all necessary steps according to the law to put a stop to the proceedings in the Magistrate’s court in respect of the indictable offences the subject matter of the information now being questioned in the proceedings now before us on appeal. So in my judgment in the circumstances, there can be no question of the proceedings on information in the High Court being oppressive to the appellants or for that matter, being an abuse of the process of Court. So all the authorities tending to point to the inherent jurisdiction of superior courts of record to stop or stay proceedings be they civil or criminal which are oppressive or vexatious or an abuse of the process of court have no basis for their application in the instant case.

In the instant case it is not alleged that the information the subject-matter of the appeal now before us was not field in accordance with the provisions of Section 18(jj) of the 1974 Law nor was it alleged that the information was not filed in accordance with the relevant provisions of the Criminal Procedure Law. This being so, the Attorney-General of Imo State by preferring the information now being questioned has duly in my judgment exercised his power under Section 191 of the 1979 Constitution. I cannot see any basis on which this court can thereafter interfere with the exercise of that power.

It is open to the appellants to put up any defences open to them against the in-formation against them in the High court including the right to fair hearing reserved to them under Section 33 sub- section 9 of the Constitution which provides as follows:

“No person who shows that he has been tried by any court of competent jurisdiction for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court.” (Italics mine)

It is for the above reasons in addition to those in the lead judgment of my learned brother Wali J.S.C. that I too dismiss this appeal and hold the trial court and the lower court were right in not acceding to the application of the appellants to quash the information against them in the High Court.

NNAEMEKA-AGU, J.S.C. (Dissenting): I have given very anxious consideration to the lead judgment of my learned brother, Wali, J.S.C., but with greatest respects, regret that I find it difficult to agree with him, for reasons which appear hereunder. I feel like expressing my different opinion in the matter, fully realizing that no matter whatever way the decision goes, the appellants still have to face their trial: but the issues involved are quite fundamental.

This is a further appeal by the two appellants from the dismissal by the Owerri High Court of their application to quash the information charging them before the High Court on six counts of conspiracy, stealing of N96,826.97 property of the Co-operative and Commerce Bank of Nigeria, forgery and destroying evidence.

The facts from which the appeal arose could be summarized briefly. The appellants were charged along with other persons before the Chief Magistrate’s Court, Owerri, for the same offences which form the subject of the information. A plea of not guilty was taken. But the case had to be adjourned several times be-cause the D.P.P. had called for the case file and did not return it. On the 18th of January, 1985, the case had to be adjourned sine die by the learned Chief Magistrate. On the 18th of November, 1985, the Honourable Attorney-General, Imo State, filed an information against them in the High Court on substantially the same offences against four of the accused persons, including the appellants. Before a plea was taken, learned counsel on their behalf filed a motion to have the information quashed on the following grounds:

“1.     Before the proof of evidence upon which the information is based was pre-pared and complied, the accused persons did not elect to be tried by the High Court. Refers to Section 5(c) and Section 6(2) Criminal Procedure (Miscellaneous Provisions) Law No. 19 of 1974.

2. The order to send the case file to the Director of Public Prosecutions was made contrary to the provisions Section 7 of the said Law No. 19 of 1974. 3. Since the accused persons had elected summary trial before a court of competent jurisdiction, to terminate the trial before the Chief Magistrate’s Court the prosecution should have invoked the provisions of Section 18(L)(i) of the said law entering a nolli prosequi.
3. The proof of evidence was also prepared and complied without compliance with the provisions of Section 18(ee) of the said Law No. 19 of 1974.
4. The exercise of preparing and compiling proof of evidence is an exercise in futility and the information based on it has no legal root and should be quashed.
5. The case against the accused persons in the Chief Magistrate’s Court is still pending. The information filed against the accused on the same facts is an abuse of process and an exposure of the accused to double jeopardy.”

Upon the objection being over-ruled by Chianakwalam, J., the appellants appealed to the Court of Appeal, Enugu Division, Aseme, Olatawura, and Katsina-Alu, JJ.C.A. dismissed the appeal. The Court of Appeal held that on the strength of the uncontradicted affidavit of Ndukwe Agwu, Senior Clerical Officer and two letters, Exhs. A AND B (in particular Exh. B dated 2nd October, 1984), there was substantial compliance with S.18(ee) of Edict No. 19 of 1974. Hence the further appeal to this court. The issues for determination in this appeal have been set out in the brief of the appellant thus:

“(1)   Whether the Court of Appeal is right in holding that on the facts before it the information filed in the High Court of the Owerri Judicial Division against the appellants and others who had elected to be tried summarily complied with the mandatory provision of Section 18(ee) of Law No. 19 of 1974?

(2)     Whether the Court of Appeal is right in holding that the prosecution com-plied substantially with the relevant provisions of Edict No. 19 of 1974?

(3)     Whether the Court of Appeal is right in law in holding that the burden was on the appellants to subpoena the Chief Magistrate’s Court Owerri to tender the original of a letter dated 2nd of October 1984 purportedly written by the Director of Public Prosecutions terminating the proceedings before the Chief Magistrate’s Court, when what was tendered in evidence by the prosecution was an uncertified office copy?”

The learned Senior Advocate for the appellants, Mr. Ikeotuonye, submitted that the appellants having elected summary trial before the Chief Magistrate and having joined issues on the charge by the plea of “not guilty”, cannot be tried on an information by the Attorney-General before the High court without his first terminating the charge before the Chief Magistrate in the manner prescribed by section 18(ee) of the Criminal Procedure (Miscellaneous Provisions) Edict No. 19 of 1974. He submitted further that from the contents of the ruling of the learned Chief Magistrate on the 18th of January, 1985, it was clear that the letter, Exh. B, dated 2nd October, 1984, had not yet got to her notice. He contended that if Exh.B had got to her by that date it would not have been necessary to inform her that the case file had been dispatched to the D.P.P. He submitted that the appellants have a constitutional right to summary trial, which they had duly elected. It could only have been taken away from them in a manner prescribed by law. He submitted that the Court of Appeal was in error to have found substantial compliance with the provisions of section 18(ee) of the Edict. The Magistrate’s Court case was still pending. The pendency of charges in two courts on the same facts against the same accused persons was an abuse of process, he submitted. He further submitted that the Court of Appeal was in error to have placed the burden of producing the original of the letter, Exh. B, on the appellants. Finally he argued that the respondent had the burden but failed to discharge it by producing either the original or a certified true copy.

In her reply the Principal State Counsel for the respondent, Mrs. Chianakwalam-Uzoma, relied on the respondent’s brief and addressed us orally. She submitted that the appellants were never exposed to double jeopardy. She pointed out that since the proceedings of 18/1/85 there has been no further proceedings before the Chief Magistrate. The Chief Magistrate received Exh. B, she pointed out; so the fact that she failed to record that she acted on it is immaterial. She submitted that the powers conferred upon the Attorney-General of a State under section 191 of the Constitution of 1979 are very wide. She conceded it, however, that she failed to record that she acted on it is immaterial. She submitted that the powers conferred upon the Attorney-General of a State under section 191 of the Constitution of 1979 are very wide. She conceded it, however, that section 274 of the Constitution recognises existing laws, in this case s.18(ee) of Edict No. 19 of 1974, but pointed out that the D.P.P. was acting in accordance with section 18(ee) when he wrote Exh.B.

In his final reply, Mr. Ikeotuonye underscored the fact that the D.P.P. stated he was acting under the Edict. He did not say he was not bound by the Edict.

I must begin my consideration of the above submissions by pointing out that it is common ground that the D.P.P. claimed to have been acting under section 18(ee) of the Edict (No.19) of 1974. If it is found that the Court of Appeal was wrong in holding that the learned Chief Magistrate received Exh.B before the 18th of January, 1985, and acted upon it, then the inference that Exh.B influenced the proceedings of that day falls to the ground. The learned Chief Magistrate herself recorded as follows on that day:

‘The prosecution informs the Court that the case file is still with the Director of Public Prosecutions who called for it. The Director of Public Prosecutions should prosecute the case as it seems the case file is not coming back and it is not for the parties to continue wasting time in this Court. The original case file or any other document relating to this case be transmitted to the Director of Public Prosecutions for necessary action. Inventory of exhibits to be forwarded also. Case adjourned sine die.”

Now the letter Exh.B purported to have been written on the 2nd of October, 1984, reads as follows:

‘The Chief Magistrate, Chief Magistrate’s Court, Owerri.

OW/299c/84: COMPOL VS. ISHMAEL AMAEFULE AND OTHERS Pursuant to Section 18(ee) and 18(jj)(2)(c) of Criminal Procedure (Miscellaneous Provisions) Edict No. 19 of 1974, I ask that the proceedings of the above named case be stopped and the case file and all statements or documents tendered during the proceedings be transferred to the Attorney-General for the purpose of preparing Proofs of Evidence in respect of the charge(s) with a view to preferring an information.

Sgd. J.C. Njoku DIRECTOR OF PUBLIC PROSECUTIONS”

It is apparent that the above proceedings of the 18th of January, 1985, are in-consistent with the contents of the letter, Exh.B. If the learned Chief Magistrate had received Exh.B on the date of the proceedings she would have been expected to have acted in accordance with the directions contained therein by stopping the proceedings. She would have had no need to adjourn it sine die. Moreover, there is great force in the argument of Mr. Ikeotuonye that if she had received Exh. B, she would not have needed to be informed in the court on that day (18/1/85), some three months later, that the case file was still with the D.P.P. Indeed the records of the proceedings of that day negatives any suggestion that the learned Chief Magistrate had received Exh. B. 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 Agwu relied 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 18/1/85 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. 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 a 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.

In the above state of the facts, the only outstanding question is whether the Attorney-General of a State can in exercise of his powers under section 191 of the Constitution of the Federal Republic of Nigeria, 1979, file an information in the High Court against the appellants who had earlier been charged of the same offences as contained in the information and had pleaded not guilty to the charge before the Chief Magistrate during the pendency of the proceedings before the Chief Magistrate.

The gist of the submission on behalf of the State is that in the exercise of his powers to institute and undertake criminal proceedings under the section, the Attorney-General cannot be inhibited in any way, not even by the fact that a charge on the same facts is pending in any court of law. It was however conceded that he was expected to follow the procedures laid down by law for his exercise of the powers as long as such procedures do not impede his exercise of the powers or are not in conflict with his constitutional powers. It is better, I believe, to quote the submission on the point in the respondent’s brief in full. It runs thus:

“(b)    The Attorney-General of Imo State, in exercising his powers under Section 191 of the Constitution of the Federal Republic of Nigeria 1979, is expected to follow procedures laid down for the exercise of his powers as long as such procedures does not impede the exercise of these powers, or is not in conflict with his constitutional powers. To buttress the point that the Attorney-General did not disregard the Criminal Procedure (Miscellaneous Provisions) Law No. 19 of 1974, the letter p.11 of the Record of Proceedings was based on the Provisions of Sections 18(ee) and 18(jj)(2)(c) of the said Law. Particularly, Section 18(jj)(2)(c) is where the Attorney-General could disregard the Provisions of Section 5(c) of the said Law and proceed to file information If he considers that special circumstances is for the Attorney-General to determine. He is not about to disclose such circumstances to anybody including the courts. See Attorney-General Kaduna State vs. Hassan (1985) 2 N.W.L.R. Pt. 8 page 483; The State vs. Hod AND OTHERS (1983) 2 S.C. 155. The respondent submits that what transpired in the Chief Magistrate’s Court in respect of this case which led to the filing of Information now being sought to be quashed in this appeal, comes within the Sections of the Law referred to above:’

Section 18(jj)(2)(c) is not relevant in this appeal. In short the learned Principal State Counsel for the State has not argued that the learned Attorney-General is above the law. She rather contended that he complied with the law. He is bound by the provisions of Edict of No. 19 of 1974. Her argument is that the provisions of the Edict were complied with in that the Chief Magistrate’s Court’s proceedings had terminated. I have found to the contrary.

It has been suggested orally in the alternative that in the exercise of the power of the Attorney-General to institute and undertake criminal proceedings section 191 of the Constitution has given him infinite powers. Two cases, namely Attorney-General Kaduna State v. Hassan (1985) 2 N.W.L.R. (Part 8) 483 and The State v. Ilori AND OTHERS (1983) 2 S.C. 155 were cited in support.

The first point that I must make with respect to Hassan’s Case (supra) is that it had nothing to do with the power of the Attorney-General to institute and under-take criminal proceedings, which is in issue in this case, but with the power of the Solicitor-General to discontinue criminal proceedings where there is no incumbent Attorney-General, and with locus standi. On a more general note it was decided that the powers of the Attorney-General under s.191 of the Constitution are personal to him; so they cannot be exercised by any other person save one who is acting under the direction of the Attorney-General. That case is not helpful in this case. Although the second case i.e. The State v. S.O. Rod AND 2 AND OTHERS (1983) 2 S.C. 155 was on the powers of the Attorney- General to enter nolle prosequi and not on his power to institute criminal proceedings, I have derived a lot of benefit from the pronouncements of some honourable Justices of this Court on the general principles of law on the powers of the Attorney- General.      I shall refer to those I consider useful and material in this case later.

In the course of consideration of this case, we were referred to the provision of section 72(1) and (2) of the Criminal Procedure Law (Cap. 43) Laws of Eastern Nigeria, 1958, applicable in Imo State, which provides as follows:

“72(1)Notwithstanding anything in this Act contained the Attorney-General in each Region may exhibit to the High Court information for all purposes for which Her Majesty’s Attorney- General for England may exhibit information in the High Court of Justice in England. (2) Such proceedings may be taken upon every such information as may lawfully be taken in the case of similar information filed by Her Majesty’s Attorney-General for England so far as the circumstances of the case and practice and procedure of the High Court will admit.” (Italics ours)

The above provisions have imported English practice and procedure into our own rules on the Attorney-General filing information.

This is an existing law under section 274 of the Constitution. I should pause here to observe that this provision has departed from what has become the settled attitudes of this Court to interpretation of provisions of our Constitution and our enactments. Ordinarily, English rules of practice and procedure will govern a situation in our courts only where there is an enabling law to that intent and either there are no local rules on the point or the available local rules are not as full as they ought to have been: See Laibru Ltd. v. Building AND Civil Engineering Contractors (1962) 1 All N.L.A. 387, also Odume v. Nnachi (1964) 1 All N.L.R. 329. And this Court in Nafiu Rabiu v. Kano State (1980) 8-11 S.C. 130, per Udoma, J.S.C. at p.151 warned as follows:

“I might add that in my opinion, it is not a correct approach to the proper interpretation of our present Constitution to begin by looking to the meaning or interpretation of a statutory provision or Constitution of other countries with different wordings. But of course, foreign constitutions or statutes with identical provisions accepted as in pan materia with the relevant provisions of our constitution will naturally carry some weight in their persuasive influence, bearing in mind always, that even in such cases, circumstances may be at variance. (See Olaleke Obadara AND OTHERS vs. President, Ibadan West District Council Grade “B” Customary Court Iddo (1965) N.M.L.R. 39.)”

In the above provision under Section 72 of the Criminal Procedure Law we are, in contrast to the above pronouncements, tied to the apron-string of English law and current developments therein. This is not a happy situation. We have now come of such an age that we should take a good look at all relevant English laws and take decisions as to which we wish to receive and which to discard. Be that as it may, the implication of the above provisions under section 72 of the Criminal Procedure Law is that I have first to direct my Inquiry into whether an Attorney-General in England could have validly filed an information in circumstances which have arisen in this case. Then having ascertained that, see whether the situation has been reversed by any extent and relevant constitutional or statutory provision in this country. For a proper appreciation of the issues raised by this appeal, I believe it is necessary to advert to the dual position of the Attorney-General in Eng-land as well as in Nigeria. He is a Minister and, like any other Minister, he is given an executive discretion. He is also the Chief Law Officer of the Government. Like any other lawyer, he is not only within the law but is expected to operate within its perimeters. The difficulty is sometimes where to draw the line between the two functions, as they can, quite often, get inter- twined.

Now, issues which may arise on the reviewability of the Attorney- General’s decision on the institution, undertaking, or discontinuance of criminal prosecution may, in my view, be classified broadly into three.

(i)      A question may arise as to whether a court could review his manner of exercise of it.

(ii)     A different question may arise as to whether the procedural requirements proceeding or surrounding his exercise of it have been properly observed.

(iii)    Yet various questions may be raised as to whether the Honourable Attorney failed or refused to exercise it at all or apply his mind to certain material is-sues, or misinterpreted or misapplied the law, or based his decision on wholly extraneous considerations, or failed to have regard to matters which he would have taken into account, or whether there has been an abuse of power.

On the first point, it has, no doubt been the attitude of the courts in England that they should not concern themselves with the manner of exercise of executive discretion. In the recent decision of the Court of Appeal in England in the case of Hanratty v. Lord Butler, The Times, May 13, 1971, where the Home Secretary was sued for negligence for not commuting the death sentence of a convicted murderer, the (English) Court of Appeal refused to allow the action to proceed be-cause the prerogative of mercy is:

……. one of the highest prerogative of the Crown and the courts should refrain from the manner of its exercise.”

See also Blackburn v. Attorney-General (1971) 1 W.L.R. 1037. But Lord Devlin in Chandler v. Director of Public Prosecutions (1964) A.C. 763, at p.810 dealt with reviewability of the exercise of discretionary powers where he stated:

‘The second comment is that inquiry is not altogether excluded. The courts will not review the proper exercise of discretionary power but they will intervene to correct excess or abuse”

Thus, in England the courts can quite perfectly intervene to correct excesses and to prevent abuse of legal process. Also in the case of the Connelly v. D.P.P. (1964) A.C. 1254, the same Judge (Lord Devlin) had to express his views as to whether the Court could interfere with the D.P.P. bringing two different indictments on the ground that it was oppressive to the defence to do so and insisted upon his limiting himself to only one. He said at page 1347:

“He insists that the Crown has a right to bring forward its case in as many indictments as it chooses and that the court is bound to proceed on each of them, whether or not it considers that the Crown is behaving oppressively. Thus, before the merits of this particular case can be considered there is raised for your Lordships’ determination a point of criminal procedure of the greatest importance, which requires to be dealt with fully.

My Lords, in my opinion, the Judges of the High Court have in their inherent jurisdiction, both in civil and in criminal matters, power (subject of course to any statutory rules) to make and enforce rules of practice in order to ensure that the court’s process is used fairly and conveniently by both sides.”

Later he continued:

“I propose to put under three heads the reasoning which, in my opinion, sup-ports this conclusion. First, a general power, taking various specific forms, to prevent unfairness to the accused has always been a part of the English criminal law, and I shall illustrate this with special reference to the framing of indictments. Secondly, if the power of the prosecutor to spread his case over any number of indictments was unrestrained there could be grave injustice to defendants. Thirdly, a controlling power of this character is well established in the civil law.”

This decision raises substantially the same issues as this case. The D.P.P., no doubt is an officer in the Attorney- General’s Ministry. His acts of public prosecution are deemed to be acts of the Attorney-General. It is therefore of material significance in this case that the learned Judge emphasized the fact of control of his acts by the courts and the need for the courts to intervene when the prosecution is being done in such a way as to be oppressive to the defence or result in injustice to him.

It is interesting to observe the effect of the above decision in Connelly v. D.P.P. in other courts of similar jurisdiction in the Commonwealth. In Canada, despite the decision of the Supreme Court of Canada in Rourke v. R. (1977) 33 C.R.M.S. 268 that there does not exist any jurisdiction under the Criminal Code of Canada to stay proceedings because the prosecution was considered oppressive, courts of different grades decided to intervene on grounds of abuse of process. They found shelter in the approval given by a majority of the Judges of the Supreme Court of Canada in Rourke’s Case (supra) to the dicta of Viscount Dilhorne, L.C., in D.P.P. v. Humphreys (1977) A.C. 1 at p.26 conceding the existence of the power, albeit to be used only in special circumstances. The attitude of the courts in Australia was summarized in the pronouncement of the High Court of Australia in Bar-ton v. The Queen (1980) 32 A.L.R. 449 where, after recognizing the fact that the Australian Law on the point is the same with the English law, it stated at p.458:

“It would be surprising if Parliament intended to make the Attorney-General’s information subject to review. It has generally been considered to be undersirable that the court whose ultimate function is to determine the accused’s guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue.”

They continued:

“It is one thing to say that the filing of an ex- officio indictment is not examinable by the courts; it is quite another thing to say that the courts are powerless to prevent an abuse of process or the prosecution of criminal proceedings in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice. The courts exercise no control over the Attorney-General’s decision to commence criminal proceedings, but once it does so, the courts will control those proceedings so as to ensure that the accused received a fair trial. The distinction between the court’s lack of power to re-view the Attorney-General’s decision whether to commence proceedings or not and the court’s power to control its proceedings was central to the judgment of Lord Langdate in R. v. Prosser.” (1848) 11 Beav. 306; 50 E.R. 834, p.837. Part of the ratio runs thus:

‘The Attorney-General, who authorizes the issuing of the writ has the right and duty of controlling the action. In the prosecution of it, he, or the person whom he permits to act for him, must conform to the rules of the Court in which the proceedings takes place. He must proceed regularly; and for the purpose of the maintaining regularity and doing justice in the whole course of the proceedings to determine the right, I apprehend that all Courts exercise over the Attorney-General the same authority which they exercise over every other suitor; and further, that the Attorney-General, would not anymore than any other suitor, be permitted to prosecute any proceeding which was merely vexatious, or which had no legal object.”

I would add “or which is oppressive or an abuse of legal process”.

Thus in England as well as in Canada and Australia, there is a clear distinction in principle between the courts being asked to review the Attorney-General’s exercise of his discretion to commence or discontinue criminal prosecution, on the one hand, and seeing, once he has exercised his discretion, that the prosecution as commenced is not oppressive or leads to an abuse of the process of the court, on the other. The former they hold is not a matter for the courts; but in the latter they have always intervened in exercise of their power of adjudication and in accordance with the Court’s inherent power and duty to prevent oppressive proceedings and abuse of legal process.

I shall now next refer to a statement of the law on aspects of the point in Eng-land by the House of the Lords in the case of Padfield v. Minister of Agriculture, Fisheries and Food (1968) A.C. 997, per Lord Morris of Borth-Y-Gest at p.1040 – 1041 where he said:

“If the respondent proceeded properly to exercise his judgment then, In my view, it is not part of the duty of any court to act as a Court of Appeal from his decision or to express any opinion as to whether it was wise or unwise. The Minister was given an executive discretion. In speaking of a power given by statute to a local authority to grant certain licences Lord Greene M.R. said in his judgment in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation –

‘When discretion of this kind is granted the law recognises certain principles upon which that discretion must be exercised, but within the four corners of those principles the discretion, in my opinion, is an absolute one and cannot be questioned in any court of law.’

I think it follows that an order of mandamus could only be made against the Minister if it is shown that in some way he acted unlawfully. A court could make an order If it were shown: (a) that the Minister failed or refused to apply his mind to or to consider the question whether to refer a complaint; or (b) that he misinterpreted the law or proceeded on an erroneous view of the law; or (c) that he based his decision on some wholly extraneous consideration; (d) that he failed to have regard to matters which he should have taken into account.”

See also Secretary of State for Education AND Science v. Tameside Metropolitan Borough Council (1977) A.C. 1014 per Lord Denning M.R. These decisions even go far beyond merely seeking whether there is oppression or abuse of legal process in its exercise.

It is therefore clear from a gamut of decided cases that in England (as well as in a number of other commonwealth countries) the law is that the manner of exercise of the power of the Attorney-General to institute and undertake criminal proceedings or to discontinue the same is not reviewable by the courts; but that once those proceedings are commenced by the Honourable Attorney, the courts will control the proceedings to ensure that the accused person receives a fair trial and that the processes of the court are not abused. If the Attorney-General decides to prosecute any person or not to do so, the courts will not interfere or inquire into that decision or ask him to say why he decided as he did. If he refused to hear and consider an application for a fiat the courts will compel him with a mandamus to hear and consider it; but once he has heard and considered it and refuses. or grants it the courts cannot interfere: See Ex party Newton (1855) 4 F. AND B. 869; also 119 E.R. 323 which was cited with approval by Idigbe, J.S.C., in The State v. S. O. Ilori AND 2 OTHERS (supra) at pp. 161-162.

In the instant appeal what is in issue is whether the Attorney- General for Imo State can file an information in the High Court while a previous charge to which the appellants had pleaded in the Chief Magistrate’s Court is still pending. I believe it flows from the cases I have cited above and that the courts in England will not permit him to do so. They would have disallowed the information in the High Court until the case in the Chief Magistrate’s Court had been withdrawn both be-cause it is an abuse of process for a party to file a case in a second court while another case between him and the same adversary on the same facts is pending in another court and because it is oppressive to have a person to face criminal charges on the same facts in two different courts. It is firmly established in English law that if there are two courts which are faced with substantially the same questions, the courts have the duty to ensure that those questions are debated in only one of those courts. See Thames Lauchers Ltd. v. Trinity House Corporation of Deptford Strond (1961) 1 All E.R. 26, p.32; Royal Bank of Scotland v. Citrusdal Investments (1971) 3 All E.R. 558, p.561-562; also WEA Records Ltd. v. Visions Channel 4 Ltd. (1983) 1 W.L.R. 721, at p.727. A court of justice has always a bounden duty to prevent an improper use of its machinery, and will, in a proper case, summarily prevent its machinery from being abused or used as a means of vexation or oppression in the process of litigation. See Castro v. Murray (1875) 10 Ex. 213; also Willis v. Earl of Beauchamp (1886) 11 Probate 59 at p.63. An abuse of legal process results when the machinery of the law is used improperly or contrary to the accepted rules of practice or procedure. The process need not, in my view, be malicious or be a result of ill-will. When, however, the process is frivolous or vexatious it is unsustainable and ought not to have been brought at all (for these see Supreme Court Practice 1976 para. 18/19/7 and 18/19/9). Another good reason why an English Court would have interfered is that it will not be a fair trial to have the appellants face the strain of trial in two courts at the same time on the same facts. The courts have always had the inherent jurisdiction to remove from its list any matter improperly placed before it: Niton v. Loundes (1909) 2 I.R.I. If the courts decide to invoke any of these powers in the instant case it is definitely not reviewing the Attorney-General’s exercise of his discretion to prosecute the appellants, for the reasons I have given. It is rather ensuring that the machinery and process of court are not abused and the appellants are not exposed to the odium of unfair trial. It appears to me that in the context of fair trial, it is trial. 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 al-ready 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. I shall return to this point when I shall consider the effect of Edict No. 19 of 1974. As the Supreme Court stated, per Karibi-Whyte, J.S.C., in Ntukidem AND OTHERS v. Oko AND OTHERS (1986) 5 N.W.L.R. 909, at p.933, fair hearing must mean a hearing conducted according to all the legal rules formulated to en-sure that justice is done to the parties. See also Ariori AND OTHERS v. Elemo AND OTHERS (1983) 1 S.C. 13, at pp.23-24 per Obaseki, J.S.C. Suffice it to say at the moment that an English Court faced with the two proceedings would have at least stayed action in the information until the first charge is disposed of. So, if section 72 of the Criminal Procedure Act is given its full effect and English Practice and Procedure imported into the situation the appellants’ application to have the information quashed would have succeeded. And Eso, J.S.C., The State v. llori AND OTHERS (supra), at p.177 observed that the powers conferred upon the Attorney-General under S.191 of the Constitution are analogous to the powers of the Attorney-General at Common Law.

Now, I must consider the matter in the context of section 191 of the constitution of 1979. This section gives to the Attorney- General of a state unlimited powers to institute, undertake, take over and continue, and discontinue criminal proceedings either by himself in person or through officers of his department. These powers are indeed very wide. See: The State v. Ilori AND 2 OTHERS (supra). But as Idigbe, J.S.c. said at p.161, he can be compelled by mandamus to exercise his powers where he refuses to do so. Indeed the whole contest in Fawehinmi v. Akilu AND Anor. (1987) 1 N.W.L.R. (Part 51) 554 has never been whether mandamus could issue in a proper case. It was whether the applicant in that particular case had a locus standi and whether there were materials before the court upon which to grant leave. I have also shown that at common law, although the manner of exercise of the Attorney-General’s powers cannot be questioned in a court of law, the court, in exercise of its judicial and adjudicative functions, can stop or stay proceedings which amount to abuse of process or which deprive an accused person of his rights to a fair trial. The question therefore is, must a Nigerian court abide by these principles?

My answer to the above question turns on the view I take on the provision of section 191 of the Constitution, in particular sub- section (3) and section 18(ee) of Edict No. 19 of 1974. Now section 191 of the Constitution of 1979 provides as follows:

“(1)   The Attorney-General of a State 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 Law of the House of Assembly or Edict;

(b)     to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and

(c)     to discontinue to any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.

(2)     The powers conferred upon the Attorney-general under subsection (1) of this section may be exercised by him in person or through officers of his department.

(3)     In exercising his powers under this section the Attorney-General shall have regard to the public interest the interests of justice and the need to prevent abuse of legal process.”

I am italicized the expressions “public interest’, “interest of justice”, and “the need to prevent abuse of legal process,” I have read these expressions over and over again and have come to the conclusion that they are declaratory of the Common Law principles. This is, more so because section 72 of the Criminal Procedure Act, which I have discussed above, is an existing law within the meaning of section 274 of the same Constitution. I feel reinforced in this view by a comparison of the provisions of section 104 of the 1963 Constitution with those of section 160 or 191 of the 1979 Constitution on the powers and functions of the Attorney-General with respect to public prosecutions.        In section 104(6) of the 1963 Constitution, it was expressly provided as follows:

“(6)   In the exercise of the powers conferred upon the Attorney-General of the Federal by this section, the Attorney-General shall not be subject to the direction or control of any other person or authority.”

There is a similar provision in the constitutions of the various Regions.         In the 1979 Constitution, that provision is absent. Rather sub-sections (3) of both s.160 and 191 provide as follows:

“(3)   In exercising his powers under this section the Attorney-General shall have regard to the public interest, the interests of justice and the need to prevent abuse of legal process.”

Can it be rightly said that sub-section (6) of section 104 of the 1963 Constitution and sub-section (3) of section 160 or 191 of the 1979 Constitution were in-tended to achieve the same objective? I think not. I rather think that the above provisions in the 1979 Constitution were intended and designed to take cognisance of the developments in similar Common Law jurisdiction as adumbrated in such cases as Chandler v. D.P.P. (supra); Connelly v. D.P.P. (supra); Barton v. The Queen (supra) and Padfield v. Minister of Agriculture, Fisheries AND Food (supra) and so many other cases where it had been held that much as the manner of exercise of the Attorney-General’s power is not reviewable, the courts can intervene when the allegation is that in the exercise of his powers it had resulted in abuse of legal process or is contrary to the interest of justice, public interest, or has resulted in oppression. It appears to me that if it was intended that the Attorney-General would remain an omnipotent institution unto himself who can only be checked by public opinion or removal, there would have been no need to delete section 104(6) and similar provisions in the 1963 Constitution. The combined effect of this pro-visions is that English Law has been imported into the situation; and that, from the cases I cited above, these three grounds are limitations to the exercise of the power which are justiciable by the courts. So that, whereas the courts cannot review the manner in which the Attorney-General exercises his discretion to prosecute or not to prosecute a particular case, the court can quite perfectly intervene if the power is exercised in such a manner as to amount to an abuse of legal process or to deprive the accused person of his right to fair trial or in a manner contrary to public interest. The right to fair trial is one of the rights entrenched in our Constitution. In my opinion, to have charges on the same facts pending against any person in two courts at the same time is not only a negation of his right to fair trial but is accepted as an abuse of process in most civilised societies. Above all, just as the Attorney-General in England and the Director of Public Prosecutions acting on his direction or on his behalf are expected to conduct criminal prosecution according to law and the regulations made thereof (for which see the Prosecution of Of-fences Act of 1879 and Prosecution of Offences Regulations of 1944 – S.R. AND 0. 1946 No. 1467), the Attorney- General of Imo state is expected to exercise his powers under section 191 of the Constitution in accordance with the laws of the State.

Relevantly section 18(ee) of Edict No. 19 of 1974 provides as follows:

“306.           A law officer, where any charge of an indictable offence is being proceeded with summarily by a Magistrate under the provisions of this part may, at anytime before the decision thereof, by order in writing under his hand, require such magistrate to stop further proceedings and to transfer the case to another magistrate within the same chief magisterial district or to transmit the case file and all statements and documents mentioned in section 7 of the Criminal Procedure (Miscellaneous Provisions) Edict, 1974 made or tendered during the hearing, to the Attorney-General for the purpose of preparing the proofs of evidence in respect of the charge with a view to preferring an information.”

This section carries very clear provisions on the point: The Law Officer, which expression included both the Attorney-General himself for any officer in his department, must “by an order in writing under his hand, require such magistrate to stop further proceedings and to …………………… transmit the case file and all statements and documents ………………… to the Attorney-General for the purpose of preparing the proofs of evidence in respect of the charge with a view to prefer-ring an information.” This Edict has the force of the Constitution behind it in that it is an existing law within the meaning of section 274. It is binding on the Attorney-General, inter alios. There can be no better evidence of general public interest of a State than the laws of that State; and the post of Attorney-General is in some good sense, as the Chief Legal Officer of Government, synonymous with the rule of law. Also, a justice in our courts is justice according to law, observance of the Laws of a State is coterminous with the “interest of justice” in the State.

Before I conclude, I must examined more closely the decision of this Court in the case of Hod (supra) which has been so heavily relied upon by the respondent. What was in issue in that case was whether the Court should have inquired whether in entering a nolle prosequi in the court of trial the Attorney-General acted maliciously or was motivated by ill-will against the appellant. This Court per Eso, J.S.C., with whom the other Justices agreed held that such matters could not be inquired into. In my view – H I am in a position to say so – my learned brothers were right. For when the court digs into issues of malice or ill-will the court is digging into the manner of exercise of the constitutional power. That is exactly what it cannot do, from the principles I have discussed above. In the instant case, the complaint is on a different footing. It consists of complaints of breach of an existing law of Imo State, abuse of the legal process and breach of the right to fair trial. These, in my view, are areas in which this Court, and indeed the lower courts, can intervene. I think it is necessary to always bear in mind the fact that in the manner of exercise of his executive decision to prosecute or not, the Honourable Attorney-General is supreme. But when he refuses or neglects to exercise it, the court can compel him by mandamus to do so. And when he exercises it in such a way as to infringe any of the sacred norms in the administration of justice the court will not shirk from its duty to see justice done according to law. For it would be sad day for justice in this court when there is an Attorney-General who is above the law and can trample with impunity upon the cherished norms in the administration of justice. In my opinion section 191(3) of the Constitution was designed to ensure that there never will be such an Attorney-General.

For the above reasons the appeal succeeds and is allowed. I quash the information filed by the Attorney-General of Imo State in the High Court of Imo State in these proceedings; but this is without prejudice to whatever correct step the Honourable Attorney intends to take to carry out his decision to prosecute the appellant.

Appeal dismissed.