(2018) LPELR-43712(SC)

Transcription

1 MATHEW v. STATE CITATION: In the Supreme Court of Nigeria ON FRIDAY, 9TH FEBRUARY, 2018 Suit No: SC.449/2014 Before Their Lordships: OLABODE RHODES-VIVOUR Justice of the Supreme Court MARY UKAEGO PETER-ODILI Justice of the Supreme Court OLUKAYODE ARIWOOLA Justice of the Supreme Court CLARA BATA OGUNBIYI Justice of the Supreme Court CHIMA CENTUS NWEZE Justice of the Supreme Court AMIRU SANUSI Justice of the Supreme Court SIDI DAUDA BAGE Justice of the Supreme Court Between IBILOYE MATHEW - Appellant(s) And THE STATE - Respondent(s) RATIO DECIDENDI

2 1. CONSTITUTIONAL LAW - 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 (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 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 quasijudicial 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 , Paras. A-D) - read in context

3 2. COURT - POWER OF COURT: General powers of the Supreme Court as provided for under Section 22 of the Supreme Court Act "The situation on ground calls for the Supreme Court to do the needful and that is the application of Section 22 of the Supreme Court Act and it provides thus: S.22 Supreme Court Act- The Supreme Court may from time to time make an order necessary for determining the real question in controversy in the appeal and may amend any defect or error in the Record of Appeal and may direct the Court below into and certify its finding on any question which the Supreme Court thinks fit to determine before trial or judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taking any generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a Court of first instance and may rehear the case in whole or in part or may be remitted to the court below for the purpose of such rehearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court."Per PETER-ODILI, J.S.C. (Pp , Paras. A-A) - read in context 3. JUDGMENT AND ORDER - ORDER OF RETRIAL/TRIAL DE NOVO: Principles that guide the court in making an order of retrial "Getting back to the order of the Court of Appeal which was for retrial or trial de novo, it has to be said that it is not an order that is to be made off hand or unadvisedly as the Supreme Court has laid down some guides on which such an order could be made and for this I shall refer to the case of Salisu Tahaya (2002) 2 SCNJ 1 this: (a) That there has been an error in law including the observance of the law of evidence, or an irregularity in procedure of such a character that on the one hand, the trial was that not rendered a nullity and on the other hand, the Court is unable to say that there has been no miscarriage of justice. (b) That leaving aside the errors at irregularity, the evidence discloses a substantial case against the appellant. (c) That there are no such special circumstances as would render it an oppressive case against the appellant (d) That the offence or offences of which the appellant was convicted or the consequences to the appellant or any other to the conviction or acquittal of the appellant are not mere trivial (e) That to refuse an order of retrial would occasion a greater miscarriage of justice than to grant it. (f) That to enable the prosecution adduce evidence against the appellant which evidence convict him, when his success at the appeal is based on the absence of that same evidence. From the guiding principle, it is clear that a retrial would definitely be oppressive to the respondent and the interest of justice compromised. There is really no distinguishing features between the present case and that of Idowu Okanlawon v The State (2015) LPELR as whether or not the Legal instrument establishing the public Defender or citizens Rights Department did not specify that it would be or not be a Department of the Ministry of Justice."Per PETER-ODILI, J.S.C. (Pp , Paras. D-A) - read in context

4 MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the decision reached in the judgment delivered by the Court of Appeal, Ibadan Division or Court below or lower Court, Coram: M.B. Dongban-Mensem, Chidi Uwoama Uwa, Haruna Simon Tsammani JJCA on the 27th day of March, 2014 in which the Court below ordered a trial de novo of the case as heard and determined by E. O. Osinugo J. of the High Court of Ogun State. FACTS BRIEFLY STATED The respondent herein was the appellant in the Court of Appeal, and he had appealed against the decision of the High Court of Ogun State convicting him for offences of conspiracy to commit armed robbery and for attempted armed robbery, and he was sentenced to death and 14 years imprisonment respectively. However, his counsel in the Court of Appeal (who was not his counsel in the trial Court), introduced an issue of lack of fair hearing to the respondent when the counsel contended in the Court of Appeal that it was improper for counsel in the Department of Citizens' Rights in the Ogun State Ministry of Justice to have been allowed by the trial judge to defend the 1

5 respondent when the counsel that prosecuted him was also from the same Ministry of Justice. Counsel had insisted before their Lordships of the Court of Appeal that a counsel from the Legal aid Council, who was already in Court but got discharged from the case of the trial judge, ought to have been allowed to defend the respondent. The Court of Appeal made on order remitting the case to the Chief Judge of Ogun State for a trial de novo. It is that order that had ignited this appeal to the Supreme Court. The facts leading to the present appeal are captured hereunder, viz: The respondent as the accused was arraigned in the High Court of Ogun State on the 11th day of September, 2007 for the offences of conspiracy to commit armed robbery and for attempted armed robbery. The charge read as follows; COUNT 1 That you Ibiloye (M) Mathew and one other, now at large on or about 3rd day of July, 2006 at Adekunle Fajuyi Road, Abeokuta, in the Abeokuta Judicial Division conspired together to commit a felony to wit: Armed Robbery contrary to Section 5(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, 2

6 1990 as amended by the Tribunal (Certain Consequential Amendments etc) Act,1990. COUNT 2 That you Ibiloye (M) Mathew and one other, now at large on or about 3rd day of July, 2006 at Adekunle Fajuyi Road, Abeokuta, in the Abeokuta Judicial Division armed with a dangerous weapon to wit: a Gun - like iron attempted to rob one Odeyemi Bunmi of money and recharge cards in his possession and thereby committed an offence contrary to Section 2(1) of the Robbery and Firearms (Special Provisions) Act, 1990 as amended by the Tribunal (Certain Consequential Amendments etc) Act, The simple facts, despite the denials of the respondent, were that on the 3rd day of July, 2006 at about 6pm, the respondent entered the shop where pw3 was helping his brother sell mobile phones and recharge cards, and while armed with an iron rod ordered pw3 to cooperate with him or forfeit his (Pw3's) life. Pw3 summoned courage and engaged the respondent in a fight with shouts of "Thief! Thief!, sequel to which the respondent bolted out and started to run. PW3 gave respondent a hot chase with shouts of Thief! Thief!", but when he remembered he had left his 3

7 shop unlocked, he decided to go back to the shop. But meanwhile, Pw1 who had come out from his house seeing PW3 chasing the respondent took over the chase from PW3 And started chasing the respondent until PW2 called the two of them PW1 and the respondent. At PW2 's house, PW1 told him (PW2) that it was PW3 that started the chase when the respondent was accused of having attempted to rob him. Upon an enquiry from PW1 as to whether PW1 knew PW3 and his shop, PW1 said he knew, as a result of which PW1 was enjoined by PW2 to go and fetch PW3 to him. Upon getting to the PW3's shop, with the need of bringing him to PW2 (respondent was already with the PW2), PW1 met the PW3 with the Police. (PW3 had gone to lodge complaint to the police when he returned from the chase of the respondent and after locking his shop. A policeman had accordingly been detailed to accompany PW3 to his shop). Whereupon they all went to PW2 s house where the police apprehended the respondent. PW4 was the policeman that effected the respondent s arrest in the premises of PW2: and the respondent, upon getting to the PW4's office at Adetan Police Station, Abeokuta 4

8 made a confessional statement Exhibit B1 which the trial judge admitted in evidence after a trial within trial had been conducted. PW4 also tendered in evidence and the trial judge admitted a knife and a mask recovered from the house of the respondent upon a search of his house by PW4. They were respectively marked Exhibits E and F. The iron rod which the PW3 had seized from the respondent was also tendered by the PW4 and the judge admitted it as Exhibit 6. PW6, a Police Officer of the CID of the police also tendered another confessional statement of the respondent which the judge admitted and marked Exhibit H. ISSUE FOR DETERMINATION The following is the issues called in question for the determination of this appeal. 1. Whether the learned Justices of the Court of Appeal were right in ordering a trial de novo of the case on appeal before them in the totality of the facts of the case and applicable law thereto. At the hearing being the 16th day of November, 2017, learned Attorney General of Ogun State, Dr. Olumide Ayeni for the appellant adopted its brief of argument settled by Emmanuel Obolo Esq. and filed on 19/11/2015 and in it were 5

9 crafted two issues for determination, the second of which learned counsel abandoned and it was struck out leaving the first and now only issue for the determination of the appeal. That issue is thus: Whether the learned Justices of the Court of Appeal were right in ordering a trial de novo of the case on appeal before them in the totality of the facts of the case and applicable law thereto. Musibau Adetunbi Esq., learned counsel for the respondent adopted the brief filed on 17/11/2015 and formulated a lone issue therein which is as follows: "In law and equity, can it be reasonably argued that the learned Attorney General of Ogun State acting through the officers of his Ministry is clothed with legal authority to prosecute the alleged offenders of Ogun State Criminal Laws and to equally defend the said alleged offenders, such that judgment of the Honourable Court below which state emphatically that the learned Attorney General of Ogun State is not clothed with such constitutional or statutory power ought to be set aside (Grounds 1 and 2)" The respondent cross-appealed with a cross-appellant's brief filed on 9/2/2015 and a reply brief filed 6

10 on 17/11/2015 and deemed filed on19/11/15. The appellant/cross-respondent filed a brief of argument filed on 9/11/2015 and deemed filed on 19/11/2015. The cross-appeal shall be addressed later. MAIN APPEAL I shall use the now sole issue of the appellant which is thus: Whether the learned Justices of the Court of Appeal were right in ordering a trial de novo of the case on appeal before them in the totality of the facts of the case and applicable law thereto. Learned Attorney General for the appellant submitted that there is no difference in independent status of the office of Public Defender of Lagos State and so the appeal should be allowed. That the trial Judge's earlier order requesting Legal Aid for the respondent from the Legal Aid Council and the appearance of a counsel from that council in Court on the 11/9/2007 were each illegal. He stated further that a look at the trial Court s proceedings does not show that the respondent was not fairly defended by counsel. That the Commissioner for Justice who is the Attorney General can properly intervene in the circumstances where the Legal Aid council could not have legally 7

11 represented the respondent and also when the respondent had no counsel in Court. That the respondent did not raise the objection in the trial Court and nothing in the record showing he was not well defended. He cited Adebayo v Attorney General Ogun State (2008) 7 NWLR Pt P Dr. Ayeni of counsel for the appellant went on to state that the right of an accused person to have his own counsel of choice under Section 36 CFRN is deemed to have been exercised the moment the Court assigns a counsel to him the representation of whom he does not object to. That Courts have no jurisdiction to look into whether or not a counsel has an instruction or briefing of his client to appear in Court as it is sufficient that he announces his appearance for his client in Court and the Court does not object to it. He said the authority to so represent need not be in writing. He referred to FRN v Adewunmi (2007) 10 NWLR (Pt. 1042) 399 per Ogunbiyi JSC, Tukur v Government of Gongola State (1988) 1 SCNJ 54. It was further contended for the appellant that nothing in Section 211 (1) (a) - (c) of CFRN precludes the Attorney General of a State to play a 8

12 defensive role in a criminal proceeding. Learned counsel for the appellant submitted that the Court below erred when it ordered a retrial or trial de novo. For the respondent, Musibau Adetunbi Esq. submitted that in the exercise of the enormous powers of the Attorney General there is to be no fetters from either the executive or the Courts. He cited Layiwola & Ors v The Queen (1959) NSCC 95 at 96; State v Ilori (1983) NSCC 69; Saka v State (1981) NSCC 474 at 483. That the Lagos State Office of the Public Defender Law Cap. 182, Laws of Lagos State 2003 is tailored along the line of the Legal Aid Council of the Federal Government 1977 but that the Public Defender in the Ministry of Justice Ogun State is under the State Attorney General. That in such a case a person from the Public Defender in Ogun State cannot defend an accused person being prosecuted by the same Ministry of Justice. He cited: Idowu Okanlawon v State 9 (supra); Awolowo v Sarki & Anor. (1966) NSCC 209 at 212; Dariye v FRN (2015) 19 NWLR (pt.1467) 325 at 362: Adigun v A.G.Oyo State (1987) 1 NWLR (pt. 53) 678 at 720. The learned counsel for the respondent referred to 9

13 his filed additional authority which is the unreported Court of Appeal case in Akeem Jimoh v State delivered on 25/7/2016. 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 10

14 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 11

15 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 12

16 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 (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 13

17 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 14

18 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 15

19 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 16

20 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 17

21 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

22 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) 19

23 Order-in-Council 1960, S 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 20

24 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 21

25 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 22

26 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 quasijudicial 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 23

27 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. Getting back to the order of the Court of Appeal which was for retrial or trial de novo, it has to be said that it is not an order that is to be made off hand or unadvisedly as the Supreme Court has laid down some guides on which such an order could be made and for this I shall refer to the case of Salisu Tahaya (2002) 2 SCNJ 1 this: (a) That there has been an error in law including the observance of the law of evidence, or an irregularity in procedure of such a character 24

28 that on the one hand, the trial was that not rendered a nullity and on the other hand, the Court is unable to say that there has been no miscarriage of justice. (b) That leaving aside the errors at irregularity, the evidence discloses a substantial case against the appellant. (c) That there are no such special circumstances as would render it an oppressive case against the appellant (d) That the offence or offences of which the appellant was convicted or the consequences to the appellant or any other to the conviction or acquittal of the appellant are not mere trivial (e) That to refuse an order of retrial would occasion a greater miscarriage of justice than to grant it. (f) That to enable the prosecution adduce evidence against the appellant which evidence convict him, when his success at the appeal is based on the absence of that same evidence. From the guiding principle, it is clear that a retrial would definitely be oppressive to the respondent and the interest of justice compromised. There is really no distinguishing features between the present case and that of Idowu Okanlawon v The State (2015) LPELR as 25

29 whether or not the Legal instrument establishing the public Defender or citizens Rights Department did not specify that it would be or not be a Department of the Ministry of Justice. The situation on ground calls for the Supreme Court to do the needful and that is the application of Section 22 of the Supreme Court Act and it provides thus: S.22 Supreme Court Act- The Supreme Court may from time to time make an order necessary for determining the real question in controversy in the appeal and may amend any defect or error in the Record of Appeal and may direct the Court below into and certify its finding on any question which the Supreme Court thinks fit to determine before trial or judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taking any generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a Court of first instance and may rehear the case in whole or in part or may be remitted to the court below for the 26