BARKONO v COMMISSIONER OF POLICE [1971] NGHC 21 (12 July 1971)

**BARKONO** **(A****PPELLANT)** **_v._** **COM****MI****S****S****I****ON****E****R** **O****F** **P****O****L****I****C****E** **(****R****ES****P****O****N****DE****N****T****)** **(1971)** **All** **N.L.R.** **505** **Div****i****si****o****n:** High Court, Kano **D****at****e** **o****f** **Judgment:** 12th July, 1971 **C****as****e** **Num****b****er****:** **Before:** Reed, C.J., Wheeler, Ag. S.P.J., Wali, SH. CT.J. Criminal Appeal. **_HELD_**** _:_** (1) Under section 49 of the Constitution of Kano State the Director of Public Prosecutions has power to take over criminal proceedings instituted by a private person. (2) By virtue of subsection 7 of that section, the expression "criminal proceedings" includes an appeal from any decision in such proceedings. (3) It was not questioned that the Director of Public Prosecutions had taken over the present proceedings and the moment he had done so, the complainant ceased to be a party to the proceedings so that his Counsel could not be heard. (4) Although it was desirable that the Director of Public Prosecutions should notify a person who had instituted a private prosecution that he was taking over those proceedings, failure to do so in no way vitiated the step taken by the Director of Public Prosecutions. _A_ _pplica_ _t_ _io_ _n_ _r_ _e_ _fused_ _._ _Constitution_ _referred_ _to:_ _Constitution_ _of_ _Kano_ _State_ , s. 49 ss. 2(_b_); 7. CRIMINAL APPEAL. APPEAL NO. K./7CA/1971. _A_ _w_ _e_ for the Appellant. _A_ _gbe_ _b_ _i_ , Senior State Counsel, for the Respondent. _M_ _a_ _j_ _iy_ _a_ _g_ _b_ _e_ for the Complainant. Wheeler, Ag. S.P.J.:-This appeal is entitled " _Mallam_ _Bardono_ _v._ _Commiss_ _ioner_ _of_ _Polic_ _e_ ", and when it was called on for hearing this morning Mr Awe indicated he was appearing for the appellant and Mr Agbebi, Senior State Counsel announced he was appearing for the respondent. No other Counsel announced himself. The hearing commenced with Mr Agbebi indicating he was unable to support the conviction and he had been addressing the court for some time giving his reasons when Mr Majiyagbe rose in his place and informed the court that the proceedings had begun by way of a private prosecution, that he had been briefed to represent the complainant, Garba Bichi in the appeal and that he wished to be heard. Mr Agbebi rejoined that although the proceedings had been instituted by Garba Bichi, they had been taken over on appeal by the Director of Public Prosecutions under his constitutional powers in that behalf and upon whose instructions he was appearing before us in the appeal. In our view we are unable to hear Mr Majiyagbe as his client has no _locus_ _standi_ in these proceedings once they have been taken over by the Director of Public Prosecutions for he then ceased to be a party to them. The matter is governed by s. 49 of the Constitution of Kano State. Subsection 2(_b_) of that section empowers the Director of Public Prosecutions to take over and continue any criminal proceedings instituted by any person, and subsection 7 of the section makes it quite clear that the expression "criminal proceedings" includes any appeal from the decision in those proceedings. In our judgment once the Director of Public Prosecutions takes over criminal proceedings in the exercise of those powers, he takes the place of the private individual who had begun them who then drops out of the case. Although Mr Majiyagbe has indicated that neither he nor his client had any notice of the Director of Public Prosecutions' intervention in these proceedings we observe that it appears that the appellant and his advisers had, for the notice of appeal filed by his Counsel given the name of the respondent as the Commissioner of Police and it specified that service was to be on the respondent through State Counsel. It is, of course, desirable that notice of the Director of Public Prosecutions' intervention in any case should be given to the person who had instituted the proceedings, but we cannot say, and it has not been suggested, that failure to do so in this case in any way vitiated the step which Senior State Counsel has informed us and which Mr Majiyagbe has not challenged, the Director of Public Prosecutions has taken in these proceedings. For these reasons we are unable to hear Mr Majiyagbe in this appeal. _A_ _pplica_ _t_ _io_ _n_ _r_ _e_ _fused_ _._