3PLR – BARKONO V. COMMISSIONER OF POLICE

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

BARKONO

V.

COMMISSIONER OF POLICE

HIGH COURT, KANO

12TH JULY, 1971

[1971] ANLR 505

APPEAL NO. K./7CA/1971.

3PLR/1971/21 (HC-K)

BEFORE THEIR LORDSHIPS:

REED, C.J.

WHEELER, Ag. S.P.J.,

WALI, SH. CT. J.

REPRESENTATION

Awe for the Appellant.

Agbebi, Senior State Counsel, for the Respondent.

Majiyagbe for the Complainant.

MAIN ISSUES

CRIMINAL LAW

CONSTITUTIONAL LAW

PRACTICE AND PROCEDURE

MAIN JUDGMENT

WHEELER, Ag. S.P.J.:

This appeal is entitled “Mallam Bardono v. Commissioner of Police”, and when it was called on for hearing this morning Mr. Awe indicated he was appearing for the appellant and Mr. Agbebi, Senior State Counsel announced he was appearing for the respondent. No other counsel announced himself.

The hearing commenced with Mr. Agbebi indicating he was unable to support the conviction and he had been addressing the court for some time giving his reasons when Mr. Majiyagbe rose in his place and informed the court that the proceedings had begun by way of a private prosecution, that he had been briefed to represent the complainant, Garba Bichi in the appeal and that he wished to be heard. Mr. Agbebi rejoined that although the proceedings had been instituted by Garba Bichi, they had been taken over on appeal by the Director of Public Prosecutions under his constitutional powers in that behalf and upon whose instructions he was appearing before us in the appeal.

In our view we are unable to hear Mr. Majiyagbe as his client has no locus standi in these proceedings once they have been taken over by the Director of Public Prosecutions for he then ceased to be a party to them. The matter is governed by s. 49 of the Constitution of Kano State. Subsection 2(b) of that section empowers the Director of Public Prosecutions to take over and continue any criminal proceedings instituted by any person, and subsection 7 of the section makes it quite clear that the expression “criminal proceedings” includes any appeal from the decision in those proceedings. In our judgment once the Director of Public Prosecutions takes over criminal proceedings in the exercise of those powers, he takes the place of the private individual who had begun them who then drops out of the case.

Although Mr. Majiyagbe has indicated that neither he nor his client had any notice of the Director of Public Prosecutions’ intervention in these proceedings we observe that it appears that the appellant and his advisers had, for the notice of appeal filed by his counsel given the name of the respondent as the Commissioner of Police and it specified that service was to be on the respondent through State Counsel. It is, of course, desirable that notice of the Director of Public Prosecutions’ intervention in any case should be given to the person who had instituted the proceedings, but we cannot say, and it has not been suggested, that failure to do so in this case in any way vitiated the step which Senior State Counsel has informed us and which Mr. Majiyagbe has not challenged, the Director of Public Prosecutions has taken in these proceedings.

For these reasons we are unable to hear Mr. Majiyagbe in this appeal.

Application refused.