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)
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
“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).
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