A.G., WESTERN NIGERIA V. THE AFRICAN PRESS (1965) LCER-337(SC) #

Case Summary #

This appeal is on Criminal Law and Procedure.

Brief Facts: #

This appeal contests the judgment of the High Court of Western Nigeria. The Director of Public Prosecutions for Western Nigeria, acting on behalf of the Attorney-General, commenced criminal proceedings against two defendants in the High Court of Ibadan through a personally signed Information. The charges brought against them were based on specific sections of the Region’s Criminal Code:

1. First Count: Alleged publication of seditious material in violation of Section 47(1)(c) of the Criminal Code, Cap. 28 Laws of Western Region of Nigeria, 1959.

2. Second Count: Accusation of publishing false news with the intent to cause fear, alarm, or disturb public peace, contravening Section 54(1) of the Criminal Code, Cap. 28 Laws of Western Region of Nigeria, 1959.

3. Third Count: Accusation of publishing defamatory material contrary to Section 316 of the Criminal Code, Cap. 28 Laws of Western Region of Nigeria, 1959.

Upon the conclusion of the prosecution’s case, the defense counsel opted not to present evidence, thus closing their case and making submissions. Subsequently, the Director of Public Prosecutions responded. At the conclusion of the trial, the presiding judge declared the proceedings regarding the First Count null and void, resulting in its dismissal. As for the Second and Third Counts, the judge found the defendants not guilty, leading to their acquittal.

The appellant has appealed to the Supreme Court against both the ruling on the First Count and the acquittal on the Second and Third Counts.

Legal Issues: #

The appeal at the Supreme Court was argued on the following grounds:
1. The learned trial judge misdirected himself in law in holding that ‘the consent required by Section 48 of the Criminal Code is a personal one which must be given in writing by the Attorney-General himself after deciding to institute a prosecution.
2. The learned trial judge misdirected himself in law in holding that ‘since the consent of the Attorney-General was not given, the proceedings in respect of count 1 of the indictment are null and void.

Ratio Decidendi #

CRIMINAL LAW AND PROCEDURE – DIRECTOR OF PUBLIC PROSECUTION – Status of a prosecution instituted by the Director of Public Prosecution #

“Since Section 47 of the Constitution authorises the Attorney General to exercise his Constitutional powers in person or through the Director of Public Prosecutions or other officers, a prosecution instituted by the Director of Public Prosecutions ranks in law as if it had been instituted by the Attorney General personally and no further evidence of consent is necessary. The question whether the Director of Public Prosecutions can validly consent on behalf of the Attorney General to the institution of a prosecution by someone else does not arise in these proceedings. The question whether in instituting these proceedings the Director of Public Prosecutions was acting in accordance with any instructions he may have received from the Attorney General has no bearing on the question whether the proceedings were validly instituted and is not one into which the Court can inquire. Generally, there is no need for a judge to know what instructions the Attorney General has given to the Director of Public Prosecutions in regard to the conduct of a case and the Courts must normally take it for granted that if the Director of Public Prosecutions begins a prosecution under Section 47 of the Criminal Code, he has done so in accordance with the instructions given him by the Attorney General, for Sub-section (9) of Section 47 of the Constitution of Western Nigeria provides that: “(9) Except at the instance of the Attorney General of the Region, the question whether he has given any instructions in pursuance of this Section, or what the instructions were,shall not be enquired into by any Court of law.” Per ADETOKUNBO ADEGBOYEGA ADEMOLA, JSC in A.G., WESTERN NIGERIA V. THE AFRICAN PRESS (1965) LCER-337(SC) (Pp 9 – 11 Paras D – A)

CRIMINAL LAW AND PROCEDURE – POWER OF THE ATTORNEY-GENERAL – How powers of the Attorney General to institute criminal proceedings may be exercised #

“The Attorney General may exercise the power to institute criminal proceedings which the Constitution of the Region gives him in any case in which he considers it desirable to do so, and in exercising it he is not subject to the control of any other person or authority. Certain Sections of the Criminal Code or other Regional laws make the consent of some person or authority necessary for the institution of a prosecution, but where that person or authority is someone other than the Attorney General these provisions must be construed as not applying to him, in order to avoid inconsistency with the Constitution, and where it is the Attorney General it would be “ludicrous” to require that in addition to signing an information or complaint he should file a document consenting to his doing so: R. v. Zik’s Press Ltd. (1947) 12 W.A.C.A. 110.” Per ADETOKUNBO ADEGBOYEGA ADEMOLA, JSC A.G., WESTERN NIGERIA V. THE AFRICAN PRESS (1965) LCER-337(SC) (Pp 8 – 9 Paras F – D)

Decision/Held: #

In the end, the Supreme Court allowed the appeal and remitted the case to the trial judge to give a decision on the 1st count of the charge.