(2018) LPELR-45304(CA)lawpavilionpersonal.com/ipad/books/45304.pdfThe Appellants who have been charged to Court have the opportunity to defend themselves, allegation of breach of fundamental

ALALADE & ANOR v. STATE

CITATION: (2018) LPELR-45304(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON THURSDAY, 5TH JULY, 2018Suit No: CA/L/442C/2017

Before Their Lordships:

TIJJANI ABUBAKAR Justice, Court of AppealUGOCHUKWU ANTHONY OGAKWU Justice, Court of AppealABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of Appeal

Between1. BARRISTER OLUSEGUN ALALADE2. BABASANJO ALALADE - Appellant(s)

AndTHE STATE OF LAGOS - Respondent(s)

RATIO DECIDENDI1. APPEAL - INTERFERENCE WITH THE EXERCISE OF DISCRETION: Attitude of appellate courts to the exercise of discretion made

by a trial Court"The Appellants also seem to be contending that the Lower Court, by favoring the authorities cited by the Respondent exhibited bias.This line of argument is completely sterile and lacks footing in law. The records have clearly shown that the Appellants were not over-reached or disadvantaged, the Lower Court merely exercised discretion which in my view is proper, and the settled position of the lawhas been that in matters of exercise of discretion an appellate Court will not normally interfere with such exercise of discretion unlessthere is sufficient reason in law which does not include that the Appellate Court would have exercised that discretion differently. InOYEGUN Vs. NZERIBE [2010] 16 NWLR (Pt.1220) 568 SC; (2010) LPELR-9276 (SC) Pg.11, paras. A - B, the Supreme Court of Nigeriaheld that: "It is also settled that the exercise of discretion, is a matter exclusively for the Court to do after weighing all thecircumstances of the case in the interest of justice..." See also 7-UP BOTTLING CO. LTD Vs. ABIOLA & SONS NIG. LTD [1995] 3 NWLR(Pt.383) 257; (1995) LPELR-2 (SC) Pg.17, Paras. C - D and LAFFERI NIGERIA LIMITED & ANOR VS. NAL MERCHANT BANK PLC & ANOR(2015) LPELR-24726 (SC) Pg. 26-27, Paras. E - B where the Supreme Court also held that:"...It is the duty of an appellant who appeals against the exercise of discretion by the Lower Court to satisfy the appellate Court thatthe Lower Court did not exercise its discretion judicially and judiciously..."Per ABUBAKAR, J.C.A. (Pp. 42-43, Paras. D-E) - read in context

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2. CONSTITUTIONAL LAW - POWER(S) OF THE ATTORNEY GENERAL: Whether the powers of the Attorney General to institutecriminal proceedings against any person can be reviewed by Courts"...Section 211 of the 1999 Constitution of the Federal Republic of Nigeria 1999 (as amended) provides for the powers of the AttorneyGeneral with respect to initiating, taking over and discontinuance of criminal proceedings against an accused person, the sectionprovides as follows:"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 inrespect of any offence created by or under any law of the House of Assembly;b. ....."In EZEA VS THE STATE (2014) LPELR 23565 (CA) PG.21-24, PARAS E-C.This Court held as follows:"The Attorney-General in law has the power and an absolute discretion to file any charge that in his opinion is supported by the proofof evidence before him. When the Attorney-General based on the proof of evidence decide to file a charge, the Police in law have nopower to stop the Attorney-General... The only check on his power at that stage is public interest, the interest of justice and the needto prevent abuse at legal process... He has an exclusive and unfettered discretion to institute or commence criminal proceedings..." InONYUIKE Vs. THE PEOPLE OF LAGOS STATE & ORS (2013) LPELR-24809 (CA) Pg. 84 - 89, Paras. D - D this Court stated that "...thedecision to prosecute or not to prosecute is at the discretion of the A-G of a State. This Court therefore cannot question the authorityof the AG of the State on how or when the A-G will exercise the discretion...". See also SARAKI vs. FRN (2016) LPELR-40013 (SC) Pg. 69-to, paras. C-A. Section 211 of the constitution of the Federal Republic of Nigeria 1999 (as amended) empowers the Attorney Generalof the State to institute and undertake criminal proceedings against any person before any Court in Nigeria other than a Court martialin respect of any offence created by law.Our Court have since held the view that the Attorney General of the State by the provisions of Section 211 of the Constitution hasabsolute powers and total responsibility to control and manage the conduct of criminal prosecution within the limits set out in theConstitution see: COMPTROLLER GENERAL OF NIGERIAN PRISONS SERVICE Vs. ADEKANYE (2002) 15 NWLR (Pt.790) 318, andEMEAKAYI Vs. COP (2004) 4 NWLR (Pt.862) 158. I think the provision of Section 211 of the Constitution simply means that the AttorneyGeneral of the State has very wide discretion to take a decision on whether it is in the best interest of the public to prosecute or not,the Courts cannot therefore as it stands question the authority of the Attorney General on how and when to exercise his discretion,see: THE QUEEN Vs. MINISTER OF LANDS & SURVEY (1953) All NLR 564, and FAWEHINMI Vs. AKILU (1987) 4 NWLR (Pt.67) 797, the lawis therefore well settled beyond any doubt that the power to institute criminal proceedings is absolutely at the discretion of theAttorney-General of the State pursuant to Section 211 of the 1999 Constitution (as amended). The Courts have no business settingout the procedure to be followed by the Attorney General of the State in the exercise of his discretion.With regards to the allegation of breach of fundamental rights; I am of the view that this allegation is baseless, frivolous and utterlyvexatious. The Appellants who have been charged to Court have the opportunity to defend themselves, allegation of breach offundamental right is therefore premature. Sections 35 and 36 of the 1999 Constitution (as amended) cannot in any way be applied torestrict the powers of the Attorney-General under Section 211 of the 1999 Constitution (as amended). As rightly submitted by learnedCounsel for the Respondent the Attorney General is not a Court of Law, Administrative panel or Tribunal and has no duty to confrontthe Appellants with the facts at his disposal before arraignment. The Attorney-General has no duty to hear the Appellants beforeissuing a Legal Advice and filing Information against them. The right to fair hearing has to do with hearing of the information againstthe Appellants in Court. The law places the determination of relevant facts material to the initiation of prosecution at the discretion ofthe Attorney General, it will be totally unwise to engage the Accused at the stage of assembling materials for trial, certainly when theaccused is arraigned in Court all facts constituting the allegations against him must be made available to him for the purpose ofdesigning and erecting his defense, that is when the right of the accused to be heard becomes activated."Per ABUBAKAR, J.C.A. (Pp.26-29, Paras. A-F) - read in context

3. CONSTITUTIONAL LAW - POWER(S) OF THE ATTORNEY GENERAL: Whether the Attorney General is subject to any control whiledischarging his constitutional responsibilities"It is important to underscore that the powers of the Attorney-General of a State under Section 211 of the 1999 Constitution are verywide and the Courts cannot question the manner in which the Attorney General exercises his authority in exercise of discretion underthe said Section. See EZEA vs. THE STATE (2014) LPELR - 23565 (CA) and ONYUIKE vs. THE PEOPLE OF LAGOS STATE (2013) LPELR -28809 (CA)."Per OGAKWU, J.C.A. (P. 45, Paras. A-B) - read in context

4. COURT - BIAS OF COURT: What must be established to prove allegation or likelihood of bias"The law is settled that where a party alleges bias or likelihood of bias on the part of the judge, it must be shown from the records ofthe Court. It is just not enough for a party to make such allegations without substantiating same, the law is trite that cases involvingallegations of bias or real likelihood of bias, the person making allegations must provide cogent and reasonable evidence to satisfy theCourt, mere vague suspicion of whimsical, capricious and unreasonable people should not be made to constitute proof, see:MOHAMMED OTADAPO OJENGBEDE Vs. M. O. ESAN (LOJA-OKE) & ANOR (2001) LPELR- 23729 SC."Per ABUBAKAR, J.C.A. (Pp. 39-40,Paras. E-B) - read in context

5. COURT - BIAS OF COURT: What must be established to prove allegation or likelihood of bias"The Appellants made blanket, generalized and sweeping allegations of bias against the learned trial Judge without particularizing andor substantiating the allegation, apparently the allegations are figments of Appellants imagination, certainly not arising from therecords of the Court. In NJC & ORS Vs. SENLONG & ORS (2010) LPELR-4582 (CA) Pg. 52-53, Paras. F - A, this Court held that: "Anallegation of bias or likelihood of bias on the port of a judge other than on the basis of pecuniary interest must be supported bysubstantial and unequivocal evidence. It is not enough that the evidence relied on creates suspicion". In my opinion and inconsideration of the facts and records herein, there is no shred of evidence before this Court to justify any slight allegation of bias onthe part of the learned trial Judge."Per ABUBAKAR, J.C.A. (Pp. 43-44, Paras. E-C) - read in context

6. COURT - BIAS OF COURT: What an accuser must establish in order to succeed in proving an allegation of judicial bias"Furthermore, allegation of bias against a judex is a very serious matter which must be backed up by solid evidence substantiatingthe same: ECOBANK (NIG) LTD vs. ANCHORAGE LEISURES LTD (2018) LPELR - 44667 (CA). There is no cogent and reasonableevidence on which the Appellants premised their allegation of bias against the judex, thus showing that the allegation is frivolous."PerOGAKWU, J.C.A. (P. 45, Paras. C-D) - read in context

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7. PRACTICE AND PROCEDURE - ABUSE OF COURT/JUDICIAL PROCESS(ES): Whether the filing of an information at the High Courtby the Attorney General while a charge is still pending against the same defendants at the Magistrates Court is an abuse of Courtprocess"The law is very well settled that the Attorney-General of a State has the power to institute, take over and/or discontinue legalproceedings against an accused person(s), as clearly set out in Section 211 of the 1999 Constitution of the Federal Republic of Nigeria1999 as amended. The section provides as follows:"The Attorney-General of a State shall have powera. to institute and undertake criminal proceedings against any person before any Court of law in Nigeria other than a court-martial inrespect 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: andc. to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or anyother authority or person."The Attorney-General in the instant case discontinued the prosecution against the defendants in Charge No:MIK/E/34/2015(Commissioner of Police Vs. Barrister Olusegun Alalade & Ors) at the Ikeja Magistrates Court and instituted the instant suit vide theInformation dated 7th November, 2016 as contained at page 1 - 34 of the Records of Appeal. There is no abuse of Court process inthis circumstance because the Attorney-General simply exercised his discretionary powers under Section 211 of the 1999 Constitution(as amended). As submitted by the Respondent, Charge No:MIK/E/34/2015 had been technically extinguished as contained in theproceedings of 25th April, 2016 at page 77 of the Records of Appeal. Filing of an information at the High Court while a charge is stillpending against the same defendants at the Magistrates Court is not an abuse of Court process: see: ISHMAEL AMAEFULE & ANOR Vs.THE STATE [1988] NWIR (Pt.75) 238; (1988) LPELR-450 (SC) Pg. 35-37, Paras. F - D the Supreme Court per OPUTA JSC (of blessedmemory).The Appellants filed suit No: ID/1043GCM/2015 (Olusegun Alalade & Anor v Attorney General of Lagos State and Ors) challenging thepowers of the Attorney-General under Sections 211 of the Constitution. On the pendency of civil suit filed by the Appellants, the LowerCourt held as follows "The case before Dabiri J is a civil matter. This is a criminal matter and the Objection is clearly answered inSection 74(2) of the ACLJ".The pendency of the civil proceedings in suit No:ID/1043GCM/2016 does not in any way make the Information in this Suit an abuse ofCourt process. The civil proceedings in suit No: ID/1043GCM/2016) are challenging the powers of the Attorney-General under Section211. See:SOCIETY BIC SA & ORS Vs. CHARZIN INDUSTRIES LTD (2014) LPELR-22256 (SC) P9.57, Paras. E - G where the Supreme Courtof Nigeria held as follows:"...what would amount to multiplicity of suits must be shown to exist and that is that the two suits or more are on the same subjectmatter and issues and the parties are same. All these components must co-exist for the ingredients that would qualify the particularsuit as abuse of Court process based on multiplicity of suits."This Court in CONOIL PLC Vs. DUTSE (2016) LPELR-40236 (CA) Pg. 12 -13, Paras. C - A held that: "where there is multiplicity of suits onthe same subject-matter, it constitutes on abuse of Court process. ...abuse of Court process simply in practical sense denotes asituation where a party has instituted a multiplicity of suits against the same opponent in respect of the same subject matter and onthe same issues...". Without any doubt whatsoever, the instant criminal proceedings against the Appellants border on entirelydifferent subject matter, from the civil suit filed by the Appellants against the Attorney- General and other Respondents.The Appellants raised storm over the decision by the Attorney General to take over the prosecution of the case against them followinglegal advice, and initiation of proceedings against them, the Appellants also complained that they had already challenged the legaladvice in Court, and that the legal advice giving rise to their arraignment is a subject of litigation in Court. The Attorney General doesnot need to obtain any input from the Police in the exercise of his powers under Section 211 of the Constitution, it must also beunderstood that by virtue of Section 74(7) of the Administration of Criminal Justice Law of Lagos State, the Attorney General is notbound to offer legal advice before he sets out to arraign an accused person, he may in the exercise of his Constitutional powersproceed to initiate criminal prosecution against an accused person without rendering legal advice once he is of the view that bringingthe accused to trial is in the best interest of the public. In NDI OKEREKE ONYUIKE Vs. THE PEOPLE OF LAGOS (Supra), the extent of thepowers of the Attorney General of Lagos State came before us for consideration, and in my modest contribution to the lead Judgment Isaid as follows:"...By the combined effect Section 211 of the Constitution of the Federal Republic of Nigeria and Section 74(7) of the Administration ofCriminal Justice Law of Lagos State, the Attorney General armed with sufficient materials at his disposal needs not engage theservices of the Police before he initiates criminal charge against a defendant.Nnamani JSC (of blessed memory) while contributing in AMAEFULE & 7 OTHER Vs. THE STATE (1988) NWLR (Pt.75) at 238 on theinterpretation of powers of the Attorney General under Section 191 of the 1979 Constitution which is impari materia with Section211(1) (b) of the 1999 Constitution quoted Esho, JSC (of blessed memory) in the following words:"The pre-eminent and incontestable position of the Attorney General under common law as the Chief law officer of the State eithergenerally as a legal adviser or specifically in all Court proceedings to which the State is a party has long been recognized by theCourts.In regard to these powers, and subject only to ultimate control by public opinion, and that of the parliament, or the legislature, theAttorney General has of common law, been a master unto himself, law unto himself, and under no control whatsoever judicial orotherwise vis-a-vis his powers of instituting or discontinuing criminal proceedings."The extensive and unfettered powers enjoyed by the Attorney General under Section 211 of the 1999 Constitution to institute criminalproceedings cannot be subordinated to Section 4 of the Police Act, moreover Section 74 of the Administration of Criminal Justice Lawmakes the Attorney General theultimate authority and custodian of the powers of the State to prosecute.Failure to conduct police investigation before initiating criminal prosecution cannot vitiate the process as long as there are materialssufficient in the judgment of the Attorney General to initiate criminal proceedings pursuant to Section 74(7) of the law".The law has clearly made the Attorney General of the State the master of the game when it comes to initiating charge against anaccused person, his authority, decision and mode of exercising his powers under Section 211 of the Constitution of the FederalRepublic of Nigeria 1999 cannot be subjected to judicial scrutiny, he is always riding on the back of public interest, he cannot becalled upon to offer explanation on how he arrives at a decision to prosecute. The appropriate venue for the Appellants to ventilatetheir grievance is at the trial Court and certainly during trial.?I find no slightest evidence of abuse of process, the learned trial Judge is therefore right in coming to the conclusion that there is noabuse of process, challenge to legal advice issued by the Respondent cannot constitute good grounds to stop prosecution, as I statedearlier the Attorney General is not bound to render legal advice, he has the right to proceed to initiate information against an accusedperson based on the materials available to him, and the materials need not emanate from the Police. I therefore hold the view thatthe information filed against the Appellants does not constitute an abuse of Court process."Per ABUBAKAR, J.C.A. (Pp. 32-38, Paras. A-F) - read in context

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TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading

Judgment): This is an appeal against the Ruling of the

High Court of Lagos State sitting in the Ikeja Division,

delivered by J. E. Oyefeso (Mrs.) J. on the 9th day of March,

2017 in Charge No: ID/3661C/2016. The ruling is contained

at pages 266 - 269 of the Records of Appeal wherein the

Appellant's Notice of Preliminary Objection contained at

pages 35 – 45 was heard, determined and dismissed.

The Respondent herein filed information against the

Appellants at the trial Court, the Appellants filed Notice of

Preliminary Objection on the grounds that, the charge

constitutes an abuse of Court process because there is civil

proceedings in suit No: ID/1043GCM/2016 challenging the

powers of the Attorney-General under Section 211 of the

1999 Constitution and that Charge No: MIK/E/34/2015

(Commissioner of Police v. Barrister Olusegun Alalade &

Ors) was pending at the Ikeja Magistrate Court against the

Appellants. The Lower Court heard the Application and in

its Ruling dismissed the Appellants' Objection to the suit.

It is important to briefly state the facts grounding this

appeal.

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The Appellants and two other persons were jointly charged

for conspiracy to commit a felony, assault occasioning

harm, unlawful assault, and engaging in a fight in a public

place. During the pendency of the charge, the Attorney

General of the State through the office of the Director of

Public Prosecutions rendered legal advice and took over

the prosecution of the case and went ahead to file

information against the Appellants, so doing did not

obviously go down well with the Appellants who went

ahead to challenge the propriety of the legal advice by way

of taking out originating summons. At the trial Court

therefore the Appellants raised preliminary objection

alleging abuse of process. The Lower Court held the view

that the civil suit filed by the Appellants had no bearing

with the information filed against the Appellants. The

Appellants became aggrieved by this decision and therefore

filed an Amended Notice of Appeal on the 7th day of April,

2017 containing seven (7) grounds of Appeal.

The Appellant's Brief of Argument was filed by the 1st

Appellant himself a legal Practitioner on the 7th day of

April, 2017. The Respondent's Brief on the other hand was

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filed by learned Counsel Oshoala Esq. on the 10th day of

November, 2011. The Respondent also filed a Notice of

Preliminary Objection on the 11th day of November, 2016.

The Amended Notice of Appeal and the Briefs by the

respective counsel for the parties were all deemed as

properly filed and served on the 10th day of April, 2017.

Learned counsel for the Appellants nominated (five) issues

for determination, the issues are as set out below:

1. Whether the rights of the Appellants under

Sections 35 and 36 of the Constitution of the Federal

Republic of Nigeria 1999 were breached when the

Attorney General of the Respondent received a

petition targeted at them from the Co-Defendants in

Charge No:MIK/E/34/2015 (Commissioner of Police v.

Barrister Olusegun Alalade & Ors) pending before the

Ikeja Magistrate Court, investigated the said petition

without giving them (Appellants) any chance to be

heard thereon and proceeded on the basis of that one

sided evaluation to issue his Legal Advice dated 11th

March 2016?

2. If the answer to question 1 is in the affirmative,

whether the learned trial judge of the Lower Court

came to the right conclusion to hold that the

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power of the Attorney General of the Respondent

under Section 211 of the Constitution of the Federal

R e p u b l i c o f N i g e r i a i s “ A N A B S O L U T E

ONE" (unchallengeable) which by extension override

the competing guaranteed constitutional rights of the

Appellants to fair hearing and trial under Sections 6,

35 and 36 of the same constitution?

3. Whether the learned trial judge of the Lower Court

came to a just and proper conclusion in holding that

the Respondent did not abuse judicial process when it

filed the information in the Court below when Charge

No: MIK/E/34/2015 (Commissioner of Police v.

Barrister Olusegun Alalade & Ors) at the Ikeja

Magistrate Court and suit No: ID/1043GCM/2016

(Olusegun Alqlode & Anor v Attorney General of

Lagos State and Ors) were still subsisting and

pending on the subject matter and substratum of the

said information in this case?

4. Whether the Learned trial judge interpreted the

law correctly when she held that -

"The Defendants have submitted that they filed a suit

challenging the Legal Advice issued by the Attorney

General in this matter before Dabiri J. the case before

Dabiri J. is a civil matter.

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The criminal matter and the objection is clearly

answered in Section 74(2) of the ACJL.

That is, whether the learned trial judge of the Court

interpreted the law correctly by concluding that the

civil suit filed by the Appellants before Dabiri J. to

challenge the infraction of their guaranteed

Constitutional Rights in the process of the Attorney

General's action under Section 74 of the ACJL is

incapable of availing them or providing them any

protective relief?

5. Whether the learned trial judge of the Lower Court

did not exhibit likelihood of bias in the light of the

way she conducted the proceedings ab initio,

reviewed submissions of learned counsel of parties on

appellants notice of preliminary objection and

delivered her ruling thereon on the 9th of March

2017?

The Respondent on the other crafted 3 (three) issues for

determination, they are also reproduced as follows:

1. Whether the Appellants' Notice of Appeal filed 10th

March, 2017 constitutes a competent, valid and

proper notice of appeal known to law and susceptible

for amendment in the Amended Notice of Appeal filed

7th April, 2017?

2. Whether the powers conferred on the

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Attorney- General under Section 211 of the 1999

Constitution of the Federal Republic of Nigeria (as

amended) to institute and undertake criminal

proceedings to wit: filing of an information must be

dependent on the provisions of Sections 35 and 36 of

the CFRN.

3. Whether the filing of information to prosecute the

appellant during the pendency of charge no:

MIK/E/34/2015 (Commissioner of Police V. Barrister

O l u s e g u n A l a l a d e & O r s ) a n d S u i t

No:ID/1043GCM/2016 (Olusegun Alalade & Anor V.

Attorney General of Lagos State and Ors) amount to

an abuse of Court Process?

SUBMISSIONS OF COUNSEL FOR THE APPELLANTS

ISSUE ONE

Learned counsel for the Appellants referred to Sections 6,

35, 36 and 211 of the Constitution of the Federal Republic

of Nigeria 1999;ADEWOLE Vs. JAKANDE [1981] NCLR

HC Lagos; ATTORNEY GENERAL (BENDEL STATE)

Vs. ATTORNEY GENERAL (FEDERATION) [1981] 10

SC 1 and ADEGBENRO VS. ATTORNEY GENERAL OF

THE FEDERATION & ORS [1962] WNLR 130 to submit

that the Attorney General has a constitutional duty to give

audience to the Appellants after he received a petition

written against them by their co-defendants

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in a criminal charge before taking a decision to take over

the prosecution of the said petition and thereafter

purporting to issue a legal advice on that basis. Counsel

argued that the Attorney General has a duty to ensure that

he follows the procedure permitted by law when invoking

and exercising his powers under Sections 211 of the

Constitution of the Federal Republic of Nigeria 1999.

Learned counsel for the Appellants further submitted that

any exercise of powers by the Attorney General pursuant to

Section 211 of the Constitution of the Federal Republic of

Nigeria 1999 which fails to comply with the Administration

of Criminal Justice Law passed pursuant to Section 35(1)

(c) of the same Constitution can be challenged in Court by

virtue of Section 5 of the same Constitution. Counsel

submitted that the power of the Attorney General under

Sections 211 of the Constitution of the Federal Republic of

Nigeria 1999 is not absolute and unchallengeable;

reference was made to ELIKE Vs. NWAKWOALA [1984]

12 SC 301 and ABACHA Vs. THE STATE [2002] 7 SC

(Pt.1) Pg.1 at 11.

Learned counsel further referred to D.P.P. Vs. OBI

CHIKE

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[1961] 1 All NLR (Pt. 2) 186; OKITIPUPA OIL PALM

CO Vs. JEGEDE [1982] 3 NCLR 494 HC Ondo;

WILLIAMS KPOBIMOH Vs. THE BOARD OF

GOVERNORS, WESTERN IJOH TRAINING COLLEGE

[1966] NMLR 130 and LEGAL PRACTITIONERS

DISCIPLINARY COMMITTEE Vs. FAWEHINMI [1985]

7 SC 178. Counsel argued that the issuance of legal advice

by the Attorney General pursuant to his power under

Section 211 of the Constitution of the Federal Republic of

Nigeria 1999 is cognizable and controlled by Section 36 (1)

of the same Constitution on the competing rights of a

citizen to fair hearing. Counsel referred to the Petition

written against the Appellants by the co-defendants before

the Magistrate Court and the proceedings before the

Magistrate Court on 13th January, 2016; 3rd February,

2016; 7th and 8th of March, 2016. Counsel further referred

to pages 74 and 75 of the Records of Appeal; as well as

paragraphs of 22 - 27 of the 1st Appellant's depositions in

suit No:ID/1043GCM/2016.

Learned counsel for the Appellants submitted that the

Attorney General was working clandestinely with the

defendants before the Lower Court in a partial manner to

subvert the fundamental rights of the Appellants. Counsel

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submitted that the Attorney General is expected to act

without partiality and bias so as to avoid infringing on the

fundamental rights of the Appellants but that in the instant

case, the Attorney General exhibited bias and partiality

even before issuing his legal advice and that his conduct

was propelled by the Petition written by the 3rd and 4th

Defendants in MIK/E/34/2015. Learned counsel argued that

the Attorney General investigated and acted on the said

Petition without giving the Appellants who were the target

of the Petition any chance to be heard.

Learned counsel for the Appellants argued that the Legal

Advice purportedly issued by the Attorney General is void

and of no effect in law because the Attorney General turned

himself into an investigator, accuser and a judge on the

petition he received contrary to the rules of natural justice

and the provisions of Section 36 of the Constitution of the

Federal Republic of Nigeria 1999. Counsel argued that the

said Legal Advice at pages 71 - 73 of the Records of Appeal

is tainted with bias because there is no nexus between the

alleged infamous conduct in professional respect and the

fight amongst siblings and

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members of the same family and that there is no

justification for the conclusion that the 3rd and 4th

Defendants were just defending themselves.

Learned counsel submitted that the power of the Attorney

General does not give him license to violate the

constitutional rights of the Appellants in the process. He

argued that Section 211 is not superior to Sections 6, 35

and 36 of the Constitution and that Section 211 (3) of the

Constitution provides that the Attorney General shall have

regard to public interest, the interest of justice and the

need to prevent abuse of legal process. Counsel referred to

LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE

Vs. FAWEHINMI (Supra) and ABACHA Vs. THE STATE

[2002] 7 SC (Pt. 1) Pg. 1 at 11 - 12 to submit that the

Respondent through the Attorney General infringed on the

constitutional rights of the Appellants with the way and

manner he handled the petition written against the

Appellants by the co Defendants and the modus operandi

adopted when the Attorney General issued the Legal Advice

which gave rise to the Information upon which the instant

case is founded. Learned Counsel therefore urged this

Court to resolve this issue in favor of the Appellants.

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ISSUE TWO

Submitting on the second issue for determination, learned

counsel submitted that the Appellants have a right to

approach the Court for relief once their fundamental rights

under Sections 35 and 36 of the Constitution have been

infringed by the Attorney General and that the power of the

Attorney General under Sections 211 of the Constitution is

not absolute and unchallengeable and cannot bar the

Appellants from enforcing their constitutional rights.

Counsel further submitted that legislation like Section 74 of

the ACJL cannot inhibit the Appellants rights under

Sections 35 and 36 of the Constitution; he relied on

ARCHBISHOP OKOGIE Vs. ATTORNEY GENERAL,

LAGOS STATE [1981] 2 NCLR 218; ARIORI Vs.

ELEMO (MURAINO) [1983] 1 SC 13; ATTORNEY

GENERAL FEDERATION Vs. ATTORNEY GENERAL,

BENDEL [1981] 10 SC 1; MINISTER OF INTERNAL

AFFAIRS Vs. SHUGABA [1982] 3 NCLR 915; UDO Vs.

STATE [1988] 3 NWLR (Pt.82) Pg.315 at 333;

OZULONYE Vs. STATE NCLR 204.

Learned counsel for the Appellants further referred to

AFEGBAI Vs. ATTORNEY GENERAL OF BENDEL

STATE [1984] 5 NCLR 503 at 508 and ASEMOTA Vs.

YSUFU [1982]

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3 NCLR 419 to submit that by the provisions of Section

211(3) of the Constitution the powers of the Attorney

General are constrained and shown not to be absolute.

Counsel cited SOFEKUN Vs. AKINYEMI [1980] 5-7 SC 1

at 20-21 to submit that the Lower Court was wrong to

have concluded that the power of the Attorney General

under Section 211 of the Constitution is absolute,

unchallengeable, and not amenable to the jurisdiction of

the Court where allegation of infringement of fundamental

right of the Appellants is in issue. Learned counsel urged

this Court to set aside the ruling of the Lower Court and to

grant the prayer in the Appellants' Notice of Preliminary

Objection.

ISSUE THREE

On the third issue, learned counsel for the Appellants

submitted that the learned trial judge erred when he

overruled the Appellants' Notice of Preliminary Objection

on the ground that the Respondent did not commit any

abuse of judicial process when it filed the Information in

this case while the proceedings in MIK/E/34/2015 and suit

No:ID/1043GCM/2016 were contemporaneously subsisting

and ongoing. Counsel referred to pages 77- 187 of the

Records of Appeal and submitted that the Appellants by

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their Notice of Preliminary Objection referred the Lower

Court to the pending proceedings which make the instant

suit an abuse of Court process but that in its Ruling, the

Lower Court rejected the arguments of the Appellants and

proceeded to hold that the case before Dabiri J. is a civil

matter.

Learned counsel referred to ISHMAEL AMAEFULE &

ANOR Vs. THE STATE [1988] 2 NWLR 156 at 117 and

argued that from the totality of the facts of this case, it

cannot be said that the Attorney General acted bona fide,

lawfully and procedurally as a chief law officer of the State

and that the Lower Court did not act correctly, judicially

and judiciously when it ruled that the case pending before

Dabiri J. is a civil matter whose relevance has been

answered by Section 74(2) ACJL. Counsel argued that the

Respondent herein who is also the Respondent in the suit

pending before Dabiri J. has a duty under the Constitution,

in equity, fairness and justice not to proceed to file the

Information before this Court. Learned counsel relied on

EDET Vs. THE STATE [1988] 12 SC (Pt.1) 103 and

C.A. BANJO & ORS vs. ETERNAL SCARED ORDER OF

CHERUBIM AND

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SERAPHIM [1975] 3 SC 37 at 42 and submitted that the

filing of Information at the Lower Court by the Respondent

who has filed pleadings in Charge No: MIK/E/34/2015 at

the Ikeja Magistrate Court and suit No: ID/1043GCM/2016

clearly proves some element of deliberate acts.

Further on this issue, the learned counsel for the

Appellants argued that the only valid means by which the

Appellants could have ventilated their grievance on the

violation of their fundamental rights is through a civil

proceeding as they did against the Respondent Attorney

General who issued the Legal Advice. Counsel referred to

Sections 6, 35, 36, 46 and 272 of the Constitution; RE:

(G.M) BOYO [1970] 1 All NLR III; SOFEKUN Vs.

AKINYEMI (Supra) and ALABOH Vs. BOYES [1984] 5

NCLR 830 to submit that there is no formal way for

invocation of power to prevent breach of constitutional

rights and that it may be canvassed at any stage of the

proceedings. Learned counsel argued that the case of

EDET Vs. THE STATE (Supra) which the Lower Court

herein relied upon is distinguishable from the instant case

and therefore the Lower Court was wrong to conclude that

the filing of the Information before it in the circumstance

does not

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tantamount to abuse of legal process. Counsel urged this

Court to set aside the Ruling of the Lower Court and

resolve this issue in favor of the Appellants.

ISSUE FOUR

On issue number four, learned counsel submitted that the

learned trial Judge grossly misinterpreted the law and

inevitably came to a wrong conclusion. Learned counsel

adopted the arguments under issue No. 3 and in addition

referred to Section 36(2)(a) and (b) of the Constitution of

the Federal Republic of Nigeria 1999 to further argue that

Section 74(2) of the ACJL is a law which makes the

administrative power conferred on the Attorney General

with respect to the issuance of Legal Advice a conclusive

power; and therefore it is void for its inconsistency with

Section 36(2)(b) of the Constitution. Counsel further

submitted that Section 74(2) of the ACJL can only be

administratively conclusive between the Attorney General

and the Police to which it was addressed and cannot

operate to bar the Appellants from instituting an action

against the infringement of their fundamental rights by the

process the Attorney General adopted in issuing the Legal

Advice. Counsel concluded that the Lower

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Court came to a wrong and unconstitutional conclusion

when it held that Section 74(2) of the ACJL is a complete

answer to the Appellants action pending before Dabiri J. of

the same Court. Learned Counsel therefore urged this

Court to resolve this issue in favor of the Appellants.

ISSUE FIVE

On issue number five, learned counsel submitted that the

learned trial Judge in the instant case had by his Ruling on

the Appellants' Preliminary Objection exhibited a likelihood

of bias and should for that reason be barred from further

adjudicating on the case. Counsel referred to the

proceedings before the Lower Court on the 10th day of

January, 2017 where the trial Court adjourned to the 14th

of February, 2017 for arraignment and/or hearing of the

pending application. Learned counsel argued that the trial

Court ought to have adjourned only for the hearing of the

Notice of Preliminary Objection which was already before

the Court as at the 10th day of January, 2017 and not for

any other reason especially as it was on record that the

Information was yet to be served on the Appellants as at

the said date.

Learned counsel argued that the Lower Court had

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already made up its mind to dismiss the Appellants'

Preliminary Objection ever before it was heard. Counsel

referred to the Written Addresses of parties on the

Preliminary Objection of the Appellants before the Lower

Court and submitted that the Appellants argued and relied

on the decision inABACHA Vs. THE STATE (Supra)

which is binding on the Lower Court but was ignored by

the Lower Court who instead preferred the authorities

cited by the Respondent. Learned counsel argued that the

decision of the Lower Court leaves room for doubts and

suspicions. Counsel referred to DAHIRU & ANOR vs. APC

& 2 ORS [2016] 12 SC (Pt.VI) Pg. 1 at 10-11 and urged

this Court to allow this appeal, set aside the Ruling of the

Lower Court and grant the reliefs sought in the Appellants'

Notice of Preliminary Objection.

SUBMISSION OF COUNSEL FOR THE RESPONDENT

ISSUE ONE

The learned counsel for the Respondent argued that a

Notice of Appeal is a condition precedent to an appeal; that

where a Notice of Appeal is defective, the Court of Appeal

lacks the competence to entertain the appeal since the

Notice of Appeal is a nullity; and that the absence of a

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competent Notice of Appeal simply translates to the non-

existence of an appeal. In support of these arguments,

counsel relied on AKPAN Vs. BOB [2010] 17 NWLR

(Pt.1224) 421; GENERAL ELECTRIC CO. vs. AKANDE

[2010] 18 NWLR (Pt.1225) pg.596; CLEV JOSH LTD

vs. TOKIMI [2008] 12 NWLR (Pt.1104)] pg.422;

ODUNZE Vs. NWOSU [2007] 13 NWLR (Pt.1050) pg.

1; IBETO Vs. AMINU [2007] 5 NWLR (Pt.1028)

pg.446; DANMUSA Vs. INUWA [2007] 17 NWLR

(Pt.1063) pg. 391 and OLOWOKERE Vs. AFRICAN

NEWSPAPERS OF NIG. LTD [1993] 5 NWLR (Pt. 295)

Pg. 583 at 586.

Learned counsel further contended that for a Notice of

Appeal to be competent, the grounds of appeal contained

therein must be competent and that a ground of appeal can

only be competent if the grounds are not argumentative,

vague or general in terms; if the particulars and the nature

of the alleged misdirection are clearly stated in the said

grounds of appeal; and if it discloses a reasonable

complaint against a ratio decidendi in the decision. Relying

on EGBE Vs. ALHAJI [1990] 1 NWLR (Pt.128) Pg. 545;

A.G. OYO STATE Vs. FAIRLAKES HOTELS [1988] 5

NWLR (Pt.92) pg.1; M.C.S. (NIG.) LTD./GTE Vs.

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ADEOKIN RECORDS [2007] All FWLR (Pt.391]

pg.1624 at 1535, para E - F (SC) and OLORUNTOBA-

OJU Vs. ABDUL-RAHEEM [2009] 13 NWLR (Pt. 1157)

Pg. 83 SC, learned counsel submitted that the two grounds

of appeal contained in the Appellants' Notice of Appeal filed

on the 10th day of March, 2017 are argumentative and

vague and the particulars are prolix, unwieldy and

unnecessarily argumentative.

Learned counsel for the Respondent submitted that the

particulars of a ground of appeal are expected to highlight

briefly the misdirection or error in law complained of but

that in the instant case, the Appellants have copiously

argued the merit of the appeal in the guise of supplying

particulars of error. Counsel referred to F.H.A. Vs.

KALEJAIYE [2010] 19 NWLR (Pt.1226) 147 and

MILITARY ADMINISTARTOR OF BENUE STATE Vs.

ULEGEDE [2001] 17 NWLR (Pt.741) Pg. 194 at

212-213, Para G - H to submit that the Respondent is

misled as to the contents of the grounds of appeal in the

Notice of Appeal of the 10th day of March, 2017. Learned

counsel further argued that where a Notice of Appeal is

defective because there is no valid and competent ground

of appeal in it, it cannot be cured

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by amended grounds of appeal filed out of time. Citing

Order 7, Rule 5 of the Court of Appeal Rules, 2016 and

H.R.H. EZE DR. FRANK ADELE EKE Vs. MR.

GODFREY CHIZIEZE OGBONDA (2006) LPELR-1075

(SC) the Respondent's counsel contended and urged this

Court to hold that the Notice of Appeal dated 10th day of

March, 2017 and the two incompetent grounds of appeal

therein are liable to be struck out. He so urged this Court.

ISSUE TWO

On the second issue, learned counsel for the Respondent

referred to Section 36 (1) and (4) of the 1999 Constitution

(as amended) to submit that whenever any person is

charged with any criminal offence in any Court or tribunal

established by law, he shall, unless the charge is

withdrawn, be entitled to a fair hearing in public within a

reasonable time. Counsel submitted that the Attorney-

General in the exercise of his constitutional powers

pursuant to Section 211 of the 1999 Constitution (as

amended) is not obliged to adhere to the principles of Audi

alteram partem because the Attorney-General is not a

Court and is therefore at liberty to select who to prosecute

in respect of what offence.

Learned counsel referred to AKPA Vs. STATE [2008] 14

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NWLR (Pt.1106) 72 and AMAEFULE & ANOR vs. THE

STATE [1988] 2 NWLR (Pt.75) 238 Pg. 16-17, Paras. D

- E to submit that the onus on the Attorney-General is to

comply with the procedure laid down in Administration of

Criminal Justice Law with respect to the issuance of Legal

Advice and filing of an Information in respect of indictable

offences. Counsel submitted that a person is only entitled

to fair hearing under Section 36 (1) and (4) of the 1999

Constitution (as amended) where there is need to

determine his rights before a Court or other tribunal

established by law. Learned counsel argued that the

functions exercised by the Attorney-General are not in any

way to determine the rights of any offender but strictly to

institute and prosecute offenders in Court established by

law. Counsel referred to Section 74 (1), (2) and (3) of the

ACJL and A.G. LAGOS STATE Vs. KEITA (2016)

LPELR-40163 (CA) to submit that the Legal Advice issued

by the Attorney-General in respect of indictable offences is

conclusive. Counsel therefore urged this Court to resolve

this issue in favor of the Respondent.

ISSUE THREE

On issue number three, learned counsel for the

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Respondent submitted that abuse of Court process simply

means that the process of the Court must been used bona

fide and properly and must not be abused. Counsel referred

to AMAEFULE & ANOR Vs. THE STATE (Supra) at 117

to submit that the Appellants have a duty to establish how

the filing of the Information in the instant suit during the

pendency of Charge No: MIK/E/34/20L5 (Commissioner of

Police v. Barrister Olusegun Alalade & Ors) at the Ikeja

Magistrate Court and the civil proceedings in suit No:

ID/1043GCM/2016 constitutes malicious and improper use

of Court process without bono fide.

Learned counsel referred to Section 211 of the 1999

Constitution (as amended) to submit that the Attorney-

General of the State has power to institute and undertake

criminal proceedings against any person before any Court

of law with exception of a Court martial and to take over

and continue such proceedings that may have been

instituted by any other authority or person at any stage.

Counsel further submitted that the Attorney-General is at

liberty to file an Information against the Appellants

irrespective of any pending civil suit. Learned counsel

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contended that Charge No: MIK/E/34/2015 at the

Magistrates Court had been technically extinguished upon

the receipt of the DPP's Legal Advice as contained in the

proceedings of 25th April, 2016 at page 77 of the Records

of Appeal; and that it cannot be said that the criminal

charge at the Magistrate Court was subsisting at the time

of filing the Information in the instant suit.

Learned counsel referred to the charges against the

Appellants at pages 5 - 6 of the Records of Appeal and

relied on EDET Vs. THE STATE [1988] 2 SC (Pt. 1] 103

to submit that the Attorney-General has the power to

discontinue or terminate any criminal trial before

judgment. Counsel also referred to Section 74(7) of the

ACJL, 2011 to submit that with or without a legal advice,

the Attorney-General of the State is empowered to institute

criminal proceedings against any person and that in the

instant case, the Attorney-General acted bono fide, lawfully

and procedurally. Learned counsel urged this Court to

resolve this issue in favor of the Respondent dismiss the

appeal and affirm the Ruling delivered by the Lower Court.

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RESOLUTION

ISSUES ONE & TWO

The Appellants' issue No. one is: "Whether the rights of

the Appellants under Sections 35 and 36 of the

Constitution of the Federal Republic of Nigeria 1999

were breached when the Attorney General of the

Respondent received a petition targeted at them from

the Co-Defendants in Charge No: MIK/E/34/2015

(Commissioner of Police v. Barrister Olusegun

Alalade & Ors) pending before the Ikeja Magistrate

Court, investigated the said petition without giving

them (Appellants) any chance to be heard thereon

and proceeded on the basis of that one sided

evaluation to issue his Legal Advice dated 17th March

2016?' while the second issue is: "If the answer to

question 1 is in the affirmative, whether the learned

trial judge of the Lower Court came to the right

conclusion to hold that the power of the Attorney

General of the Respondent under Section 211 of the

Constitution of the Federal Republic of Nigeria is "AN

ABSOLUTE ONE" (unchallengeable) which by

extension override the competing guaranteed

constitutional rights of the Appellants to fair hearing

and trial under Sections 6, 35 and 36 of the same

constitution?"

The grouse of the Appellants under issues No. 1 and 2 is

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that the Attorney General violated their fundamental rights

under Sections 6, 35 and 36 of the 1999 Constitution (as

amended) because the Respondent Attorney-General

received petitions written against the Appellants by their

Co-Defendants in Charge No: MIK/E/34/2015

(Commissioner of Police v. Barrister Olusegun Alalade &

Ors) pending before the Ikeja Magistrates Court;

investigated the said petition without giving them

(Appellants) any opportunity to be heard and consequently

went ahead to issue a Legal Advice dated 11th March, 2016

to file information against the Appellants.

The Respondent's contention is that the powers of the

Attorney-General to institute and undertake criminal

proceedings under Section 211 of the 1999 Constitution (as

amended) is not subject to the rules of audi alteram partem

because the Attorney General is not a Court and that the

Attorney-General is at liberty to select who to prosecute in

respect of what offence. The Respondent further added that

the powers exercised by the Attorney-General are not in

any way to determine the rights of an offender but to

institute and prosecute such offender in a Court established

by law.

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Section 211 of the 1999 Constitution of the Federal

Republic of Nigeria 1999 (as amended) provides for the

powers of the Attorney General with respect to initiating,

taking over and discontinuance of criminal proceedings

against an accused person, the section provides as follows:

"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;

b. …..”

In EZEA VS THE STATE (2014) LPELR 23565 (CA)

PG.21-24, PARAS E-C.

This Court held as follows:

"The Attorney-General in law has the power and an

absolute discretion to file any charge that in his

opinion is supported by the proof of evidence before

him. When the Attorney-General based on the proof of

evidence decide to file a charge, the Police in law

have no power to stop the Attorney-General... The

only check on his power at that stage is public

interest, the interest of justice and the need to

prevent abuse at legal process… He has an exclusive

and unfettered discret ion to inst i tute or

commence criminal proceedings..."

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In ONYUIKE Vs. THE PEOPLE OF LAGOS STATE &

ORS (2013) LPELR-24809 (CA) Pg. 84 - 89, Paras. D -

D this Court stated that "…the decision to prosecute or

not to prosecute is at the discretion of the A-G of a

State. This Court therefore cannot question the

authority of the AG of the State on how or when the A-

G will exercise the discretion...". See also SARAKI vs.

FRN (2016) LPELR-40013 (SC) Pg. 69 -70, paras. C-A.

Section 211 of the Constitution of the Federal Republic of

Nigeria 1999 (as amended) empowers the Attorney General

of the State to institute and undertake criminal proceedings

against any person before any Court in Nigeria other than a

Court martial in respect of any offence created by law.

Our Court have since held the view that the Attorney

General of the State by the provisions of Section 211 of the

Constitution has absolute powers and total responsibility to

control and manage the conduct of criminal prosecution

within the limits set out in the Constitution see:

COMPTROLLER GENERAL OF NIGERIAN PRISONS

SERVICE Vs. ADEKANYE (2002) 15 NWLR (Pt.790)

318, and EMEAKAYI Vs. COP (2004) 4 NWLR (Pt.862)

158.

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I think the provision of Section 211 of the Constitution

simply means that the Attorney General of the State has

very wide discretion to take a decision on whether it is in

the best interest of the public to prosecute or not, the

Courts cannot therefore as it stands question the authority

of the Attorney General on how and when to exercise his

discretion, see: THE QUEEN Vs. MINISTER OF LANDS

& SURVEY (1953) All NLR 564, and FAWEHINMI Vs.

AKILU (1987) 4 NWLR (Pt.67) 797, the law is therefore

well settled beyond any doubt that the power to institute

criminal proceedings is absolutely at the discretion of the

Attorney-General of the State pursuant to Section 211 of

the 1999 Constitution (as amended). The Courts have no

business setting out the procedure to be followed by the

Attorney General of the State in the exercise of his

discretion.

With regards to the allegation of breach of fundamental

rights; I am of the view that this allegation is baseless,

frivolous and utterly vexatious. The Appellants who have

been charged to Court have the opportunity to defend

themselves, allegation of breach of fundamental right is

therefore premature. Sections 35 and 36

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of the 1999 Constitution (as amended) cannot in any way

be applied to restrict the powers of the Attorney-General

under Section 211 of the 1999 Constitution (as amended).

As rightly submitted by learned Counsel for the Respondent

the Attorney General is not a Court of Law, Administrative

panel or Tribunal and has no duty to confront the

Appellants with the facts at his disposal before

arraignment. The Attorney-General has no duty to hear the

Appellants before issuing a Legal Advice and filing

Information against them. The right to fair hearing has to

do with hearing of the information against the Appellants in

Court. The law places the determination of relevant facts

material to the initiation of prosecution at the discretion of

the Attorney General, it will be totally unwise to engage the

Accused at the stage of assembling materials for trial,

certainly when the accused is arraigned in Court all facts

constituting the allegations against him must be made

available to him for the purpose of designing and erecting

his defense, that is when the right of the accused to be

heard becomes activated. I think the Appellants need to

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take the materials constituting the trial documents and

proffer their answer in defense if they so wish.

Issues 1 and 2 are resolved in favor of the Respondent

against the Appellants.

ISSUES THREE and FOUR

The Appellants issues three and four are: "Whether the

learned trial judge of the Lower Court came to a just and

proper conclusion in holding that the Respondent did not

abuse judicial process when it filed the information in the

Court below when Charge No: MIK/E/34/2015

(Commissioner of Police v. Barrister Olusegun Alalade &

Ors) at the Ikeja Magistrate Court and suit No:

ID/1043GCM/2016 (Olusegun Alalade & Anor v Attorney

General of Lagos State and Ors) were still subsisting and

pending on the subject matter and substratum of the said

information in this case?" while issue No. 4 is: "Whether

the Learned trial judge interpreted the law correctly when

she held that - "The Defendants have submitted that they

filed a suit challenging the Legal Advice issued by the

Attorney General in this matter before Dabiri J. the case

before Dabiri J. is a civil matter. The criminal matter and

the objection is clearly answered in Section 74(2) of the

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ACJL” - That is, whether the learned trial judge of the Court

interpreted the law correctly by concluding that the civil

suit filed by the Appellants before Dabiri J. to challenge the

infraction of their guaranteed Constitutional Rights in the

process of the Attorney General's action under Section 74

of the ACJL is incapable of availing them or providing them

any protective relief?"

The fulcrum of the Appellants' contention under these

issues is that the instant suit constitutes an abuse of Court

p r o c e s s . T h e A p p e l l a n t s r e f e r r e d t o s u i t

No:ID/1043GCM/2016 (Olusegun Alalade & Anor v Attorney

General of Lagos State and Ors) which was filed by the

Appellants challenging the power of the Attorney- General

to issue the Legal Advice dated 11th March, 2016 in

Charge No:MIK/E/34/2015 (Commissioner of Police vs.

Barrister Olusegun Alalade & Ors) at the Ikeja Magistrate

Court. The Appellants also argued that Charge

No:MIK/E/34/2015 (Commissioner of Police vs. Barrister

Olusegun Alalade & Ors) is still pending at the Ikeja

Magistrate Court. The Appellants submitted that the Lower

Court refused to uphold their preliminary objection against

the charge.

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The law is very well settled that the Attorney-General of a

State has the power to institute, take over and/or

discontinue legal proceedings against an accused

person(s), as clearly set out in Section 211 of the 1999

Constitution of the Federal Republic of Nigeria as

amended. The section provides as follows:

"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;

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."

The Attorney-General in the instant case discontinued the

prosecution against the defendants in Charge

No:MIK/E/34/2015 (Commissioner of Police Vs. Barrister

Olusegun Alalade & Ors) at the Ikeja Magistrates Court and

instituted the instant suit vide the Information dated 7th

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November, 2016 as contained at page 1 - 34 of the Records

of Appeal. There is no abuse of Court process in this

circumstance because the Attorney-General simply

exercised his discretionary powers under Section 211 of the

1999 Constitution (as amended). As submitted by the

Respondent, Charge No:MIK/E/34/2015 had been

technically extinguished as contained in the proceedings of

25th April, 2016 at page 77 of the Records of Appeal. Filing

of an information at the High Court while a charge is still

pending against the same defendants at the Magistrates

Court is not an abuse of Court process: see: ISHMAEL

AMAEFULE & ANOR Vs. THE STATE [1988] NWIR

(Pt.75) 238; (1988) LPELR-450 (SC) Pg. 35-37, Paras.

F - D the Supreme Court per OPUTA JSC (of blessed

memory).

The Appellants filed suit No: ID/1043GCM/2015 (Olusegun

Alalade & Anor v Attorney General of Lagos State and Ors)

challenging the powers of the Attorney-General under

Sections 211 of the Constitution. On the pendency of civil

suit filed by the Appellants, the Lower Court held as follows

"The case before Dabiri J is a civil matter. This is a

criminal matter and the Objection is clearly answered

in Section 74(2) of the ACJL".

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The pendency of the c iv i l proceedings in sui t

No:ID/1043GCM/2016 does not in any way make the

Information in this Suit an abuse of Court process. The civil

proceedings in suit No: ID/1043GCM/2016) are challenging

the powers of the Attorney-General under Section 211.

See :SOCIETY BIC SA & ORS Vs . CHARZIN

INDUSTRIES LTD (2014) LPELR-22256 (SC) P9.57,

Paras. E - G where the Supreme Court of Nigeria held as

follows:

"…what would amount to multiplicity of suits must be

shown to exist and that is that the two suits or more

are on the same subject matter and issues and the

parties are same. All these components must co-exist

for the ingredients that would qualify the particular

suit as abuse of Court process based on multiplicity of

suits."

This Court in CONOIL PLC Vs. DUTSE (2016)

LPELR-40236 (CA) Pg. 12 -13, Paras. C - A held that:

"where there is multiplicity of suits on the same

subject-matter, it constitutes on abuse of Court

process. …abuse of Court process simply in practical

sense denotes a situation where a party has instituted

a multiplicity of suits against the same opponent in

respect of the

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same subject matter and on the same issues...".

Without any doubt whatsoever, the instant criminal

proceedings against the Appellants border on entirely

different subject matter, from the civil suit filed by the

Appellants against the Attorney- General and other

Respondents.

The Appellants raised storm over the decision by the

Attorney General to take over the prosecution of the case

against them following legal advice, and initiation of

proceedings against them, the Appellants also complained

that they had already challenged the legal advice in Court,

and that the legal advice giving rise to their arraignment is

a subject of litigation in Court. The Attorney General does

not need to obtain any input from the Police in the exercise

of his powers under Section 211 of the Constitution, it must

also be understood that by virtue of Section 74(7) of the

Administration of Criminal Justice Law of Lagos State, the

Attorney General is not bound to offer legal advice before

he sets out to arraign an accused person, he may in the

exercise of his Constitutional powers proceed to initiate

criminal prosecution against an accused person without

rendering legal advice once he is of

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the view that bringing the accused to trial is in the best

interest of the public. In NDI OKEREKE ONYUIKE Vs.

THE PEOPLE OF LAGOS (Supra), the extent of the

powers of the Attorney General of Lagos State came before

us for consideration, and in my modest contribution to the

lead Judgment I said as follows:

"…By the combined effect Section 211 of the

Constitution of the Federal Republic of Nigeria and

Section 74(7) of the Administration of Criminal

Justice Law of Lagos State, the Attorney General

armed with sufficient materials at his disposal needs

not engage the services of the Police before he

initiates criminal charge against a defendant.

Nnamani JSC (of blessed memory) while contributing

in AMAEFULE & 7 OTHER Vs. THE STATE (1988)

NWLR (Pt.75) at 238 on the interpretation of powers

of the Attorney General under Section 191 of the

1979 Constitution which is impari materia with

Section 211(1) (b) of the 1999 Constitutionquoted

Eso, JSC (of blessed memory) in the following words:

"The pre-eminent and incontestable position of the

Attorney General under common law as the Chief law

officer of the State either generally as a legal

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adviser or specifically in all Court proceedings to

which the State is a party has long been recognized

by the Courts.

In regard to these powers, and subject only to

ultimate control by public opinion, and that of the

parliament, or the legislature, the Attorney General

has of common law, been a master unto himself, law

unto himself, and under no control whatsoever

judicial or otherwise vis-a-vis his powers of instituting

or discontinuing criminal proceedings."

The extensive and unfettered powers enjoyed by the

Attorney General underSection 211 of the 1999

Constitution to institute criminal proceedings cannot

be subordinated to Section 4 of the Police Act,

moreover Section 74 of the Administration of

Criminal Justice Law makes the Attorney General the

ultimate authority and custodian of the powers of the

State to prosecute.

Failure to conduct police investigation before

initiating criminal prosecution cannot vitiate the

process as long as there are materials sufficient in

the judgment of the Attorney General to initiate

criminal proceedings pursuant to Section 74(7) of the

Law".

The law has clearly made the Attorney General of

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the State the master of the game when it comes to

initiating charge against an accused person, his authority,

decision and mode of exercising his powers under Section

211 of the Constitution of the Federal Republic of Nigeria

1999 cannot be subjected to judicial scrutiny, he is always

riding on the back of public interest, he cannot be called

upon to offer explanation on how he arrives at a decision to

prosecute. The appropriate venue for the Appellants to

ventilate their grievance is at the trial Court and certainly

during trial.

I find no slightest evidence of abuse of process, the learned

trial Judge is therefore right in coming to the conclusion

that there is no abuse of process, challenge to legal advice

issued by the Respondent cannot constitute good grounds

to stop prosecution, as I stated earlier the Attorney General

is not bound to render legal advice, he has the right to

proceed to initiate information against an accused person

based on the materials available to him, and the materials

need not emanate from the Police. I therefore hold the view

that the information filed against the Appellants does not

constitute an abuse of Court process.

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Issues No. 3 and 4 are therefore resolved against the

Appellants in favor of the Respondent.

ISSUE FIVE

On this last issue, the Appellants contended that the

learned trial Judge exhibited a likelihood of bias; and that

the learned trial judge should for that reason be barred

from further adjudicating on the case. The Appellant

further contended that at the proceedings of the 10th day

of January, 2017, the trial Court adjourned to the 14th of

February, 2017 for arraignment and/or hearing of the

pending application instead of adjourning solely for the

hearing of the Notice of Preliminary Objection which was

already before the Court as at the said date 10th day of

January, 2017. The Appellants also submitted that the trial

Court favored the authorities cited by the Respondent

against those cited by the Appellants. The Respondents did

not address this issue.

The law is settled that where a party alleges bias or

likelihood of bias on the part of the judge, it must be shown

from the records of the Court. It is just not enough for a

party to make such allegations without substantiating

same, the law is trite that cases involving allegations of

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bias or real likelihood of bias, the person making

allegations must provide cogent and reasonable evidence to

satisfy the Court, mere vague suspicion of whimsical,

capricious and unreasonable people should not be made to

constitute proof, see: MOHAMMED OTADAPO

OJENGBEDE Vs. M. O. ESAN (LOJA-OKE) & ANOR

(2001) LPELR- 2372 SC.

The Appellants herein apparently misconceived the facts or

became oblivious of the purport of the proceedings of the

10th day of January, 2017. The proceedings of that day are

contained at pages 249 - 250 of the Records of Appeal. The

proceedings at page 240 are reproduced below:

OSOALA: The Defendant is not in Court. A Notice of

Preliminary Objection was served on us which we have

responded to. We filed a Counter-Affidavit dated

6/1/2017. We have served. He may have abandoned

the application.

THE COURT: I need to set the Application down for

hearing. This is the first time this matter is coming

up.

OSOALA: We are aware there is an information before

the Court. He has to be present. I apply for a Bench

Warrant.

THE COURT: The matter is adjourned to 14/2/2017

for arraignment and/or hearing of the application.

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The Appellants were absent and unrepresented on the said

day; the Prosecution (Respondent) Counsel acknowledged

having been served with the Appellants' Notice of

Preliminary Objection and added that the Appellant may

have abandoned the 'application'. At that stage, the only

application before the Court apart from the Information

was the Appellants' Notice of Preliminary Objection and the

Lower Court stated despite the Prosecution (Respondent)

Counsel's oral application for a Bench Warrant, the Lower

Court adjourned the matter to the 14th day of February,

2017 "for arraignment and/or hearing of the pending

application."

Therefore, the contention of the Appellants that the trial

Court ought to have adjourned solely for the hearing of the

Notice of Preliminary Objection is in my considered view

baseless, frivolous and just a deliberate attempt to raise

dust and topple the due administration of justice. What

more? The trial Court having been told by the Prosecution's

(Respondent) Counsel that the Appellants may have

abandoned their Application/Notice of Preliminary

Objection; the Lower Court was therefore right

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to have adjourned for arraignment and/or hearing of the

pending application.

It was either the arraignment goes on or the Notice of

Preliminary Objection is heard on the next date, that is,

14th of February, 2017; and the records of proceedings of

14th of February, 2017 contained at pages 262-263 also

show clearly that even though the Appellants were again

absent, they were represented by counsel and the only

business attended to by the Lower Court was the hearing of

the Notice of Preliminary objection which was adjourned to

9th of March, 2017 for Ruling.

The Appellants also seem to be contending that the Lower

Court, by favoring the authorities cited by the Respondent

exhibited bias. This line of argument is completely sterile

and lacks footing in law. The records have clearly shown

that the Appel lants were not over-reached or

disadvantaged, the Lower Court merely exercised

discretion which in my view is proper, and the settled

position of the law has been that in matters of exercise of

discretion an appellate Court will not normally interfere

with such exercise of discretion unless there is sufficient

reason in law which does not include that the Appellate

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Court would have exercised that discretion differently. In

OYEGUN Vs. NZERIBE [2010] 16 NWLR (Pt.1220) 568

SC; (2010) LPELR-9276 (SC) Pg.11, paras. A - B, the

Supreme Court of Nigeria held that: “It is also settled

that the exercise of discretion, is a matter exclusively

for the Court to do after weighing al l the

circumstances of the case in the interest of

justice..." See also 7-UP BOTTLING CO. LTD Vs.

ABIOLA & SONS NIG. LTD [1995] 3 NWLR (Pt.383)

257; (1995) LPELR-2 (SC) Pg.17, Paras. C – D and

LAFFERI NIGERIA LIMITED & ANOR VS. NAL

MERCHANT BANK PLC & ANOR(2015) LPELR-24726

(SC) Pg. 26-27, Paras. E - B where the Supreme Court

also held that:

“...It is the duty of an appellant who appeals against

the exercise of discretion by the Lower Court to

satisfy the appellate Court that the Lower Court did

not exercise its discretion judicially and judiciously..."

The Appellants made blanket, generalized and sweeping

allegations of bias against the learned trial Judge without

particularizing and or substantiating the allegation,

apparently the allegations are figments of Appellants

imagination, certainly not arising from the

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records of the Court. In NJC & ORS Vs. SENLONG &

ORS (2010) LPELR-4582 (CA) Pg. 52-53, Paras. F - A,

this Court held that: "An allegation of bias or likelihood

of bios on the port of a judge other than on the basis

of pecuniary interest must be supported by

substantial and unequivocal evidence. It is not

enough that the evidence relied on creates suspicion".

In my opinion and in consideration of the facts and records

herein, there is no shred of evidence before this Court to

justify any slight allegation of bias on the part of the

learned trial Judge. This issue is therefore resolved against

the Appellants.

On the whole therefore this appeal is bereft of merit and

therefore deserves to be and is hereby dismissed. The

Ruling of the Lower Court delivered on the 9th day of

March, 2017 by OYEFESO J in Charge No: ID/3661C/2016

is hereby affirmed.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I read in

draft the leading judgment of my learned brother, Tijjani

Abubakar, JCA, which has just been delivered. The

reasoning and conclusion therein are in accord with my

views and I agree with the same.

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It is important to underscore that the powers of the

Attorney-General of a State under Section 211 of the 1999

Constitution are very wide and the Courts cannot question

the manner in which the Attorney General exercises his

authority in exercise of discretion under the said Section.

See EZEA vs. THE STATE (2014) LPELR - 23565 (CA)

and ONYUIKE vs. THE PEOPLE OF LAGOS STATE

(2013) LPELR – 24809 (CA).

Furthermore, allegation of bias against a judex is a very

serious matter which must be backed up by solid evidence

substantiating the same: ECOBANK (NIG) LTD vs.

ANCHORAGE LEISURES LTD (2018) LPELR - 44667

(CA). There is no cogent and reasonable evidence on which

the Appellants premised their allegation of bias against the

judex, thus showing that the allegation is frivolous.

It is for the foregoing reasons and the more detailed

reasoning and conclusion in the leading judgment that I

also dismiss this appeal for being devoid of merit.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I

have had the benefit of reading in draft, the judgment of my

learned brother, TIJJANI ABUBAKAR, JCA, just delivered. I

am in agreement with his reasoning and conclusion

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that the appeal is bereft of merit and deserves to be

dismissed.

Consequently, the appeal is hereby dismissed and the

Ruling of the Lower Court delivered 9th March, 2017 is

hereby affirmed.

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Appearances:

Rotimi Ogunjobi with him, M. O. AwayewasemereFor Appellant(s)

Y. G. Oshoala with him, Y. A. Sule and T. M.Ashafa For Respondent(s)

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