Can a Criminal Matter be Commenced at the High Court of the Federal Capital Territory Abuja in the Name of the Commissioner of Police

CASE TITLE:                ONU v. C.O.P (2022) LPELR-59114(CA)

JUDGMENT DATE:     24TH NOVEMBER, 2022

JUSTICES:                     CHIOMA EGONDU NWOSU-IHEME, JCA

                                       YARGATA BYENCHIT NIMPAR, JCA

                                       PETER OYINKENIMIEMI AFFEN, JCA

DIVISION:                     ABUJA

PRACTICE AREA:          CRIMINAL LAW AND PROCEDURE

FACTS:

The Appellant stood trial alongside three others before the High Court of the Federal Capital Territory, Abuja. The case of the Respondent was that the Appellant and two others negotiated and agreed with PW1, who was the driver of a red-coloured Toyota Starlet, to convey them from AYA bus stop in Asokoro, Abuja to Mpape Bus Stop, also in Abuja, for a fare.

On the way to Mpape, the trio allegedly snatched the Toyota Starlet from PW1 whilst being armed with a locally made pistol. PW1 promptly contacted the owner of the vehicle (PW4), a soldier, who met up with PW1 and a report was lodged at Asokoro Police Station from whence they were referred to Maitama Police Station, being the police formation covering the scene of the crime (Mpape Junction, Abuja). As both PW1 and PW4 left Asokoro Police Station and were at AYA Bus Stop trying to make their way to Maitama Police Station, PW4 fortuitously sighted the Toyota Starlet car being driven and occupied by the Appellant and others. With the aid of security men at a checkpoint around AYA roundabout, the Appellant and other person(s) were arrested.

Thus, the Appellant who was the 3rd Defendant and the 1st and 2nd Defendants were charged with the offences of conspiracy to commit armed robbery, armed robbery, and being in possession of a locally made pistol without licence and under circumstances reasonably believed to be used for the commission of an offence contrary to Sections 5(b), 1(2) and 3(1) respectively of the Robbery and Firearms (Special Provisions) Act, whilst the 4th Defendant was charged with receiving stolen property contrary to Section 317 of the Penal Code.

All four Defendants entered a not-guilty plea.  At the end of the trial, the trial Court discharged and acquitted the 4th Defendant, but convicted the Appellant and the 1st and 2nd Defendants on some of the offences. They were sentenced to death by hanging. Aggrieved, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION:

The Court determined the appeal on the following issues:

“(i) Whether the Respondent has locus standi to prosecute the Appellant for an offence committed in the FCT in the light of the decision in the case of Nyame v Federal Republic of Nigeria (Infra)?

(ii) Whether the Learned Trial Judge was not wrong when he pronounced the death sentence on the Appellant contrary to the provision of the extant law as at the time the Appellant was sentenced to death?

(iii) Whether the Learned Trial Judge was right to have “presumed” that the appellant made the confessional statement and relied on it heavily in convicting the Appellant despite the fact that the Appellant said he was tortured to make it?”

COUNSEL SUBMISSION

Appellant’s counsel called in aid the case of ACCORD PARTY v GOVERNOR OF KWARA STATE [2021] ALL FWLR (PT. 555) 220 at 283 on the meaning of locus standi, as well as a passage in NYAME v FEDERAL REPUBLIC OF NIGERIA [2010] ALL FWLR (PT 527) 618 at 663 to the effect that “…charges preferred at the High Court of the Federal Capital Territory, Abuja can only be initiated in the name of the Federal Republic of Nigeria” in contending that it was wrong to have preferred the charge in this case in the name of the Commissioner of Police who lacks locus standi so to do. The Court was urged to strike out the case on that score and discharge the Appellant accordingly.

The learned counsel for the Respondent in response, submitted that whilst the case of ACCORD PARTY v GOVERNOR OF KWARA STATE cited by the Appellant’s counsel remains a good decision on the jurisdictional pedestal of locus standi in civil and private law matters, they are certainly not authorities for determining public law issues such as the nomenclature by which the State (in this case the FCT) prosecutes offenders and that the Appellant’s attempt at projecting a lone statement made by the way as the decision of the Supreme Court in NYAME v FRN supra is flawed, citing OBIUWEUBI v CBN [2011] 7 NWLR (PT 1247) 465 on the proposition that what constitutes binding precedent is not a mere obiter dicta but the ratio decidendi of a case.

Counsel argued that NYAME v FRN supra was never about the power (or lack thereof) of the Commissioner of Police to prefer charges or prosecute offences before the FCT High Court; that the excerpt relied upon by the Appellant was quoted out of context because the Supreme Court recognised (at p. 135) that the power to prosecute in the Federal Capital Territory is exercised through the Office of the Attorney-General or his departments and other agencies vested with prosecutorial powers; and that the import of Sections 4 and 23 of the Police Act, Cap. 19, LFN 2004 (now Sections 5 and 66 of the Police Act, 2020 as the source of the prosecutorial powers of the Nigeria Police as an agency of the Federal Government appear lost on the Appellant.

DECISION/HELD:

In conclusion, the appeal was allowed and consequently, the judgment of the trial Court was set aside. The Appellant was accordingly discharged and acquitted.

RATIO:

​CRIMINAL LAW AND PROCEDURE- COMMENCEMENT OF CRIMINAL PROCEEDING: Whether the Commissioner of Police has the capacity to commence a criminal action against an accused person at the High Court of the Federal Capital Territory Abuja

“Issue 1 interrogates the Respondent’s locus standi to prosecute the Appellant for an offence committed in the Federal Capital Territory on the strength of a statement in NYAME v FRN [2010] 7 NWLR (PT. 1193) 344 at 402 – per Adekeye JSC to the effect that: “Charges preferred at the High Court of the Federal Capital Territory Abuja can only be initiated in the name of the Federal Republic of Nigeria”. The Appellant has urged this Court to strike out the criminal indictment that gave rise to the judgment appealed against for having been wrongly initiated in the name of the Commissioner of Police, and discharge him accordingly. But an intimate reading of the decision of the Supreme Court in NYAME v FRN supra upon which the Appellant has heavily relied does vindicate his contention.

The statement was made by way of grappling with the third issue for determination as to “Whether the lower Court was right when it affirmed the decision of the trial Court that the Respondent [i.e., Federal Republic of Nigeria] who is not the owner of the funds allegedly misappropriated by the Appellant had the locus standi to prosecute the case against the Appellant, even though the funds belong to Taraba State Government and not the Federal Government of Nigeria?”.

The Supreme Court resolved the issue in the affirmative, holding inter alia (at pp. 401 – 402) that “[t]he import and connotation of the term locus standi gives the Respondent the capacity and sufficient interest to prosecute this case” because “(8) Prevention of crime is still substantially a Federal Government Affair hence organizations like Nigeria Police, Economic and Financial Crimes Commission, Independent Corrupt Practices Commission (ICPC) and all other related agencies”; and “(9) By virtue of Section 6 of the 1999 Constitution, superior Courts of records were created for each State of the Federation including a High Court in the Federal Capital Territory Abuja.

By virtue of Section 299 of the 1999 Constitution, the Federal Capital Territory enjoys equal status as the other States of the Federation. The power to prosecute in the Federal Capital is exercised by the Federal Republic of Nigeria through the office of the Attorney-General or his department, and other agencies of the Federal Government vested with prosecutorial powers”.

It was in the above context that the statement relied upon by the Appellant was made. The capacity (or lack thereof) of the Commissioner of Police to initiate criminal prosecutions in the Federal Capital Territory was not an issue at all, and the Applicant clearly cited that well-reasoned decision out of context. As Lord Steyn once said: “In law, context is everything”. See REGINA v SECRETARY OF STATE FOR HOME DEPT., EX PARTE DALY [2001] 3 ALL ER 433, [2001] 1 AC 532]. Justice and fairness demand that the ratio decidendi of in NYAME v FRN supra “should not be pulled by the hair of the head and made willy-nilly to apply to cases where the surrounding circumstances are different”. See OKAFOR v NNAIFE [1987] 2 NSCC 1194 at 1198 – per Oputa, JSC.

The Nigeria Police is undoubtedly the foremost law enforcement agency of the Federal Republic of Nigeria. By Section 6 of the Police Act, Cap. 19, LFN 2004, the police force is under the overall command of the Inspector-General of Police, whilst the contingents of the force stationed in a State are under the command of the Commissioner of Police of that State [inclusive of the Federal Capital Territory which, by Section 299 of the Constitution, is “as if it were one of the States of the Federation”.

And Sections 4 and 23 thereof (reenacted in Sections 5 and 66 of the Police Act 2020) undoubtedly confer prosecutorial powers on the police authority subject, of course, to the Attorney-General’s power to take over or discontinue such criminal proceedings pursuant to Section 174 CFRN. See FRN v GEORGE OSAHON & ORS [2006] 5 NWLR (PT 973) 361 at 405, at 410-411 and FRN v ADEWUNMI [2007] 10 NWLR (PT 1042) 399. The Commissioner of Police of the FCT is therefore eminently invested with the legal capacity to prosecute offences in the FCT, and the Appellant’s contention that the Respondent lacks locus standi to prosecute him is misconceived.” Per AFFEN, J.C.A.