The Prosecution Of An Accused Is Not Compromised Because A State
Counsel Takes Up His Defence While The DPP Is Prosecuting, Supreme
Court Holds
Below reads the full judgement
MATHEW v. STATE (2018) LPELR-43712(SC)
ISSUE
RIGHT TO DEFENCE/LEGAL REPRESENTATION: Whether the
Attorney-General or any lawyer from a department under the Ministry
of Justice can represent an accused person while the Department of
Public Prosecution is prosecuting
DECISION
“The summary of the various standpoints of the two contending
parties having been stated above, I would recall an excerpt of the
decision of the Court below which has brought about this appeal
under discourse. It is thus: In their words at page 213 of the
Record:
“Having held under this issue that there was a breach of the
appellant’s right to fair hearing, the merit of the case is
therefore immaterial irrespective of how well the trial may have
been conducted and nothing showing that the learned defence counsel
of the Attorney General’s office was biased against the appellant
in course of trial. For this reason at this stage, it would not be
necessary to look into issue one as raised by the parties to
determine whether the offence of conspiracy to commit armed robbery
was proved against the appellant or not and their respective third
issues, as to whether Exhibits B1 and H, the alleged confessional
statement of the appellant was properly admitted in evidence or
not.”
“The stance of the respondent flowing from that decision of the
Court below is that the proceedings at the Court of trial was
fundamentally flawed and the only way out is not a retrial but for
this Court to order a discharge and acquittal of the appellant.
“The appellant’s view is that the Court of Appeal was in error
when it took the decision ordering a retrial or trial de novo of
the case as it ought to have gone ahead to determine the merits of
the appeal before it.
“At the base of this contest is whether it was correct and a
proper legal representation for the citizens’ Rights Department
Legal Officers to have defended the respondent instead of the Legal
Aid Council Legal Practitioner who had earlier been assigned by the
learned trial Judge who opted out when the citizens Rights counsel
appeared on the scene.
“A recall of the facts leading to where we are at this point
might be helpful and I shall proceed accordingly.
“At the trial Court when the case came up for proceedings on the
14th August, 2008 the respondent appeared not to have had a legal
representation and the trial judge made an order requesting the
Legal Aid Council to furnish the respondent with a defence counsel
and the matter was adjourned presumably to enable the Legal Aid
Council to comply. On the 11th day of September, 2007,the counsel
from the Legal Aid Council appeared in Court but also a set of
counsel from the Department of Citizens Rights created by the Ogun
State Government under the Ministry of Justice of the State
announced its appearance for the respondent who was the accused.
Upon this happening the counsel from the Legal Aid Council applied
and the Court acceded to his request to be discharged.
“The case proceeded to full trial without objection from the
respondent and at the end the respondent was found guilty of the
two offences of conspiracy to armed robbery and for attempted
robbery and he was sentenced accordingly.
“On the appeal of the respondent to the Court of Appeal, counsel
on respondent’s behalf raised the issue of a breach of the
fundamental rights of his client on the ground that the counsel
that defended the respondent had come from the office of the Public
Defender of Ogun State which was a department in the Ministry of
Justice of Ogun State while the prosecuting counsel was from the
same Ministry of Justice and so the respondent’s right to fair
hearing was compromised being not defended by an independent legal
representation.
“In the Court of Appeal reaching its decision it anchored on the
fact that the Ogun State Public Defender was not independent of the
Ogun State Ministry of Justice and so the situation was different
from that in Idowu Okanlawon v The State (2015) LPELR – 284 (sc) in
which the Court of Appeal ruled the Pubic Defender of Lagos State
could defend an accused person prosecution from the office of the
Attorney General of Lagos State. That the two cases are
distinguishable in that the Public Defender in Lagos has an office
independent of the Ministry of Justice while that of Ogun State is
dependent of the Ministry of Justice Ogun State and so a similar
defence of an accused prosecuted from the Ministry of Justice
cannot prevail.
“The distinction as proffered by the Court below is not as
simple as that as that explanation is forgetting the reality on
ground which is that even though, by the Lagos State Legal
instrument creating the public Defender or Department of Citizen’s
Rights had specified its independence, all the same the lawyers
therein are of Lagos State Government whose head is the Chief Law
Officer and Attorney General and Commissioner of Justice, Lagos
State. In the case of Ogun State the Citizens’ Rights Department is
a department in the Ministry of Justice and the head again is the
Attorney General even though there is no specification in stating
that the said department is independent.
“It is to be noted that the Attorney General of any State of the
Federation is provided for under Section 195(1) of the Constitution
of the Federal Republic of Nigeria (CFRN) 1999 to the effect that
the Attorney General of a State is the Commissioner for Justice and
the Chief Law Officer of the State.
“The grouse of the respondent at the appellate stage including
this Apex Court is that he was not represented by the appropriate
counsel and there is nothing in the record to show that he was
improperly or unfairly defended. Also throughout the proceedings at
the trial Court there was no whimper of dissatisfaction in regard
to the legal representation or how the proceedings were conducted.
This issue of the impropriety of a Public Defender standing for the
accused/respondent prosecuted by the Ministry of Justice. Public
Prosecutions is only raised after the full trial, conviction and
sentence. Indeed the present scenario calls to mind the caution by
this Court per Niki Tobi JSC in Adebayo v Attorney General of Ogun
State (2008) 7 NWLR (Pt. 1085) 207 where he stated thus:
“Fair hearing in the Constitution is the machinery or locomotive
of justice not a spare part to propel or invigorate the case of the
user. It is not a casual principle of law available to a party to
be picked up at will. Counsel at times makes use of it to bamboozle
the Court to divert attention from live issues. They make so much
weather and sing the familiar song”.
“Indeed the normal practice prescribes that a Court lacks
jurisdiction to look into whether or not a counsel has an
instruction or briefing of his client to appear in Court. It is
enough that counsel announces his appearance for his client in
Court and the Court as in the case in hand did not object. See FRN
v Adewunmi (2007) 10 NWLR (pt. 1042) 399 per Ogunbiyi JSC; Tukur v
Government of Gongola State (1988) 1 NWLR (Pt.68) 39; FRN v Osahon
(2006) 2 SCNJ 348 at 363. Again to be said is that such an
authority does not need to be in writing. See Tukur v Government of
Gongola State (1988) 1 5CNJ 54.
“In the case at hand the two offences for which the respondent
was charged in the trial Court were not capital offences, the first
being that of conspiracy to commit armed robbery contrary to
Section 5(b) and punishable under Section 1(2)(a) of the Robbery
and Firearms (Special Provisions) Act while the second was
Attempted Armed Robbery contrary to Section 2(1) of the Robbery and
Firearms (Special Provisions) Act, 1990 which offences do not
attract death penalty on conviction and so there was no obligation
on the Court to have the accused provided with a counsel under
Section 352 of the Criminal Procedure Law of Ogun State. Therefore
in ordering for counsel from the Legal Aid Council, the learned
trial Judge was going the extra mile in seeing that all that could
be done for an accused person was laid out for him in his defence
and it was gratuitous.
“It has to be said that the duties and functions of an Attorney
General is not narrowed down to mere Prosecution as the office of
the Attorney has been provided for under Section 211(1)(a) – (c)
CFRN , 1999 to which I shall refer and quote thus:
“211 (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. (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”.
“It is clear from Section 211(1)(b) and (c) that the power of
the Attorney General is not just prosecutorial but also defensive
when the occasion warrants after all the Attorney General is for
all including the State. Also the prosecution of an accused in a
criminal trial is not compromised because a lawyer(s) from a
department under the Ministry of Justice takes up his defence while
the Department of public Prosecution is prosecuting. It is taking
independent of an arm of justice too far to insist that it is only
a counsel from the Legal Aid Council or Private Practice that can
carry out the defence. This is technicality taken to a ridiculous
extent as if the argument is to be extended the Court’s presided by
judges would be debarred from adjudicating once a Government
functionary is involved since the pay of a judge comes from
Government coffers. Again faulty is the position of the appellant
that the Legal Aid Council, lawyer could defend him as the Legal
Aid Council itself is under the Federal Ministry of Justice which
is headed by the Federal Attorney General.
“The need to clear the air as to what no one including the Court
should do in attempting to hamper the powers of the Attorney
General, recourse to some decisions of this Court would be called
in aid. See State v Ilori (1983) NSCC 69 which applied Section 191
(1)(c) of the 1979 Constitution, impair material with Section 211
(1)(c) of the 1999 CFRN in which Eso JSC held thus:
“The issue which has been raised in this case is, without doubt,
of considerable constitutional importance. It raises the extent to
which the constitutional powers of the Attorney-General at common
law and pre-the 1979 Constitution have, if at all, been affected by
the 1979 Constitution. I would like to emphasize at this stage that
though this judgment is concerned with the interpretation of
Section 191 of the 1979 Constitution, especially Sub- section (3)
thereof, whatever interpretation is placed on that provision law
affects Section 160 of the Constitution. Section 191 of the 1979
Constitution deals with the powers of a State Attorney-General
while the corresponding provision in regard to the Federal
Attorney-General is Section 160 of the Constitution.
Sub-section (1) Section 191 of the 1979 Constitution gives power
to the Attorney-General of a State to institute and undertake
criminal proceedings against any Person, take over and continue
such criminal proceedings which may have been instituted by any
other authority or Person and discontinue, at any stage before
judgment is delivered, in any criminal proceedings, such criminal
proceedings which have been instituted by the Attorney-General
himself or indeed by any other Person or authority. All these
Powers are analogous to the powers of the Attorney General under
the common law, the powers of the Director of Public Prosecutions
under the Nigeria (Constitution) Order-in-Council 1960, S.1 1960
No. 1652, the schedules to which contained the Constitutions of the
Federation of Nigeria and of the Regions’ hereinafter referred to
as the 1960 Constitution, and the powers of the Attorney- General
under the 1963 Constitution.
The point which is for the determination of this Court therefore
is whether, by virtue of the provisions of Subsection (3) of S.191
of the 1979 Constitution, which (though it has been quoted earlier
in this judgment is repeated again for emphasis) reads “in
exercising his powers under this Section the Attorney General shall
have regard to the public interests, the interests of justice and
the need to prevent abuse of legal Process.” The position has
changed from what it was under the common law and the aforesaid
1960 and 1963 Constitutions, and the powers of the Attorney General
are now by virtue of the provision of the said S. 191 (3) of the
1979 Constitution circumscribed by a precondition or,
notwithstanding the provision of the sub-section the legal position
is still the same.
The pre-eminent 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 specially in all
Court proceedings to which the State is a party, has long been
recorgnized by the Courts. In regard to these powers, 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 himself, law unto himself and under no control
whatsoever, judicial or otherwise, vis-a-vis his powers of
instituting or discontinuing criminal proceedings. These powers of
the Attorney General are not confined to cases where the State is a
party. In the exercising of his powers to discontinue a criminal
case or to enter a nolle prosequi, he can extend this to cases
instituted by any other person or authority. This is a power vested
in the Attorney General by the common law and it is not subject to
review by any Court of law. It is, no doubt, a great ministerial
prerogative coupled with grave responsibilities.”
“Fatai-Williams CJN stated thus:
“To my knowledge, and presumably for these reasons, the Courts
have never sought to interfere with exercise of that power. This is
how it should be, bearing in mind that the Attorney-General is the
principal law officer of the State coupled with the fact that he
should not be subjected to any pressure either by the Executive or
by the Courts in the exercise of this enormous powers.”
“In an earlier stand of this in Layiwola & Ors v The Queen
(1959) NSCC 95 it was held thus per Abott Ag CJF:
“The Judge expressed the view that all the persons identified as
taking part in the riot should, in view of the provisions of
Section 8 of the Criminal Code, have been charged with all the
offences which flowed from the riot, and he goes on in my opinion
it was not open for the prosecution to elect or select which of the
accused persons should be charged with the minor offences and which
(with) the graver. The fact that only one witness identified some
of the persons charged is in my view, beside the point. That is a
matter which relates to proof and it is the province of the Court.
With due respect to the learned trial Judge. We find ourselves
quite unable to agree with this view. It is without question the
province of the Law Officers of the Crown (in this case the
Director of public prosecutions) to decide, in the light of what
the public interest requires in any particular case, who shall be
charged, and with what offence. It is entirely a matter for this
officer’s quasi-judicial discretion and, in our view, in order to
secure the proper administration of justice, he must be left to
exercise this discretion according to his own judgment, neither
acting on any rule of thumb nor taking into account any other
consideration than the public interest”
“A reference to the Lagos State law on the Public Defender law
Cap 182, Laws of Lagos State 2003 and the Legal Aid Council Law of
1977 of the Law of the Federation would be helpful. Section 1(1)(2)
of Lagos State Law:
l) There is established on office to be known as the Office of
the Public Defender (referred to in this law as “the OPD”) (2) The
Office shall be a body corporate with perpetual succession and a
common seal and shall have power to sue and be sued in its
corporate name”.
“Also Section 1(1) (2) of the Legal Aid Act Cap 19 Law of the
Federation of Nigeria 2004 provides thus:
“(1) There shall be established a Council to be known as the
Legal Aid Council which shall be a body corporate with perpetual
succession and a common seal and may sue and be sued in its
corporate name. (2) The Council shall have responsibilities for the
provision in accordance with this Act of legal aid and advice to
and in respect of persons entitled thereto.”
“Juxtaposing the Constitutional powers of the Attorney General
of a State including that of Ogun State and the Legal Aid Council
Act of the Federation and Public Defenders creating legislation of
Ogun State it is clear that what the respondent posits cannot be
situated within the provisions of the Constitution and the spirit
behind the provisions for the implementation of the administration
of criminal justice.” Per PETER-ODILI, J.S.C. (Pp. 10-24, Paras.
A-D).
References
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