BILLY IKPONGETTE & ANOR. v. COMMISSIONER OF POLICE AKWA IBOM STATE
(2008)LCN/2853(CA)
In The Court of Appeal of Nigeria
On Monday, the 7th day of July, 2008
CA/C/106/2005
JUSTICES
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
JEAN OMOKRI Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
1. BILLY IKPONGETTE
2. OMOJARA OGUNFEYIMI Appellant(s)
AND
COMMISSIONER OF POLICE AKWA IBOM STATE Respondent(s)
RATIO
WHETHER OR NOT THE STATE ATTORNEY-GENERAL CAN EXERCISE POWERS IN RELATION TO CRIMINAL PROCEEDINGS AT TRIAL AND APPELLATE LEVELS
“Criminal proceedings” is not limited to criminal proceedings in the trial Court. The term includes proceedings in the appellate Courts. The State Attorney-General can exercised the powers conferred by S.211 of the Constitution in relation to Criminal proceedings at trial and appellate levels. Also the notice of appeal in a criminal case forms part of the criminal proceedings it initiates. In other words the notice and grounds of appeal filed by a private legal practitioner who held a watching brief for the appellant in the trial Court constitute criminal proceedings within the meaning of S.211(1) of the Constitution. The issue in this appeal is the validity vel non of the criminal proceedings instituted by the private legal practitioner by the filing of the notice and grounds of appeal and ipso facto whether or not the Attorney-General can take over and continue the criminal proceedings. In DIRECTOR OF PUBLIC PROSECUTIONS v. AKOZOR (1962) ALL NLR 235 the then Federal Supreme Court made a distinction between the power of the DPP to commence criminal proceedings by instituting, undertaking or taking over criminal proceedings, and the power to appear for the State after the commencement of the proceedings. The institution undertaking or taking over of criminal proceedings can be done by the DPP in person or delegated to …..department. The latter can be undertaken by the DPP in person or delegated to officers of his department AND to private legal practitioners. Mr. Aniefiok who held watching brief for the complainant at the trial and who instituted the criminal proceedings is or was at the material time) not an officer in the department of the Attorney General of Akwa Ibom State. He could therefore not institute the criminal proceedings with or without the authority of the Attorney-General of Akwa Ibom State. PER NGWUTA, J.C.A.
DISTINCTION BETWEEN THE POWER OF THE DIRECTOR OF PUBLIC PUBLICATIONS TO COMMENCE CRIMINAL PROCEEDINGS AND POWER TO APPEAR FOR THE STATE AFTER THE COMMENCEMENT OF CRIMINAL PROCEEDINGS
In DIRECTOR OF PUBLIC PROSECUTIONS v. AKOZOR (1962) ALL NLR 235 the then Federal Supreme Court made a distinction between the power of the DPP to commence criminal proceedings by instituting, undertaking or taking over criminal proceedings, and the power to appear for the State after the commencement of the proceedings. The institution undertaking or taking over of criminal proceedings can be done by the DPP in person or delegated to …..department. The latter can be undertaken by the DPP in person or delegated to officers of his department AND to private legal practitioners. Mr. Aniefiok who held watching brief for the complainant at the trial and who instituted the criminal proceedings is or was at the material time) not an officer in the department of the Attorney General of Akwa Ibom State. He could therefore not institute the criminal proceedings with or without the authority of the Attorney-General of Akwa Ibom State. PER NGWUTA, J.C.A.
WHETHER OR NOT AN APPEAL LIES FROM THE DECISION OF A COURT AS OF RIGHT
At this juncture, it is necessary that I point out that no appeal lies from a decision of a Court unless it is conferred by statute. See Boardman vs. Sokoto N.A. (1965) NMLR 329. In Ugwu vs. A-G, E.C.S. (1975) 6 SC 13, Coker, JSC , (of blessed memory) held at page 16 that:
“Undoubtedly, all rights of appeal are statutory and in order to exercise a right of appeal it must be demonstrated by the prospective appellant that such a right………… been or is conferred on him by some statute…….” Also in Eke v. M.N.D.C. (19….) ………. All NLR 329, the Supreme Court also held that:
“…..All rights of appeal must be guaranteed by statute and a person who cannot show that his right to appeal is provided for in a law cannot have his appeal entertained……….”PER NGWUTA, J.C.A.
DEFINITION OF THE TERMS “NULLITY” AND “VOID”
A nullity is in law an act which is void and lacking of any legal effect or consequence whatsoever. It is beyond remedy. In Okafor vs. A-G, Anambra State (1991) ……. NWLR (pt.200) 659, it was held that:
“A nullity law a void act, an act which has no consequence. The Act is not only bad and as was stated by Denning L.J. in UAC v. Macfoy (1961) 3 All ER 168, is incurably bad.”
See Obimonure vs. Erinosho (1966) 1 All NLR 250; Ogbu VS. Urum (1984) 4 SC 1; Nwosu vs. Udeaja (1990) 1 SCNJ 167 and Aladegbemi vs. Fasanomade (1988) 3 NWLR (Pt. 81) 129.Black’s Law Dictionary 6th Edition at page 1573 defines void as:
“Null, ineffectual, nugatory having no legal force or binding effect; unable in law to support the purpose for which it was intended.”PER NGWUTA, J.C.A.
NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment): The appellant was the complainant in Charge No.MEK/118C/2002 in the Magistrate’s Court, Eket, Akwa Ibom State. The 1st Respondent was charged in count one of the two count charge with stealing a speed boat valued at N300,000.00 alleged property of Ibeno Public Relation Committee in possession of one Sievoadje Godwin Udi contrary to Section 390 of the Criminal Code Cap. 31 Vol. 2 Laws of Cross River State of Nigeria as applicable to Akwa Ibom State. The second Respondent was charged in Count 2 of the charge with receiving the said boat from the 1st respondent knowing same to have been stolen, an offence punishable under Section 427 of the Criminal Code (supra). The offences were allegedly committed at Upenekang beach Ibeno in Eket Chief Magisterial District of Akwa Thorn State on the 20th day of December, 2001. At the trial before. Udonwa Chief Magistrate II Mr. A. M. Akpa Esq. held a watching brief for the complainant. He appeared with Aniefiok Ekwere, Esq. The prosecution called four witnesses and closed its case on 16/5/03. On 25/9/03 Joe Daniel Esq. led by E. E. Ekanem Esq. for the defence made a no case submission. In the ruling delivered on 17/10/03 the learned trial Chief Magistrate II upheld the No Case Submission and acquitted each of the Respondents (then accused persons) under Section 288 of the Criminal Procedure Law applicable in Akwa Ibom State. On 14/11/03 learned Counsel Mr. Aniefiok Ekwere Esq. filed a notice of appeal against the ruling of the learned trial Chief Magistrate II. He signed the notice as “Solicitor for complainant/appellant”. On 2/6/04 Mr. F. J. Itim, State Counsel filed a motion for extension of time within which the appellant can file additional grounds of appeal and an order to deem the additional grounds filed as properly filed and served. When the motion was called for hearing on 3/5/04. Mr. Itim informed the Court, presided over by Okon J. that “the appeal was filed by a private legal practitioner who was finding …………brief for the applicant. The Section 211 (1)(b) of the Constitution of Nigeria 1999. Counsel for the Respondents said he would rely on the said Section 21(1)(b) of the Constitution in his objection to the hearing of the appeal. The Court adjourned to 18/6/04 for motion to file additional grounds of appeal and/or preliminary objection by the Respondent’s Counsel. On 15/6/04 Mr. Ekanem for the Respondents argued the preliminary objection to which Mr Itim for the appellant replied on 22/7/04. In the ruling delivered on 10/1/04 the learned Judge sitting on appeal Okon J. held that “Aniefiok Ekwere Esq. who was Solicitor holding watching brief for the complainant/appellant was therefore entitled to sign the notice and grounds of appeal. That being the case I am unable to hold that the notice and grounds of appeal as signed by him where (sic) void. Consequently, it is ordered that the preliminary objection raised by the Respondent’s Counsel be and is hereby over-ruled and dismissed.” See page 61 of the records. On 5/1/05 learned Counsel for the Respondents Ekanem Esq. filed a motion in the High Court Akwa Ibom State, Eket Division seeking the trinity reliefs to appeal against the ruling on his preliminary objection to the appeal. The record does not show if and when, the motion was granted.
However, Mr. Ekanem did file a notice of appeal on three grounds on 4/3/05.
From the three grounds of appeal learned Counsel in the appellants’ brief of argument, distilled the following three issues for determination by the Court:
“3.01 Whether or not it is right for the complainant in a criminal case to initiate and maintain an appeal against the decision of the trial Court upholding a no case submission raised by Counsel for the Accused without a fiat sought and obtained from the Attorney-General of the State.
3.02 Whether the State Counsel acting for the learned Attorney-General of the State was right in taking over the appeal initiated by a private Legal practitioner about the ………the learned Attorney-General of the State.
3.03 Whether or not the lower Court was right in raising issues suo motu and relying on same to give his decision in the matter without Galling on the parties to address it.”
The Respondent in the brief of argument filed 26/3/07 adopted the three issues formulated in the appellants’ brief.
Arguing issue one in his brief learned Counsel for the appellant quoted S. 211 (1) of the 1999 Constitution and said that the power of the Attorney-General is limited by sub-section 2 of the said section. He stated that the learned Counsel who held watching brief at the trial did not seek and/or obtained the fiat of the Attorney-General which he said is a sine qua non for any action not specifically initiated by the Attorney-General or officers of his department. He relied on COMMISSIONER OF POLICE vs. EMWAKAYI (2004) ALL FWLR (PT. 211) 1522 AT 1531 RATIO 10. Learned Counsel argued that the notice of appeal could not be taken over by State Counsel. He urged the Court to resolve the issue in favour of the appellant.
In issue 2 learned Counsel said the notice of appeal filed by a private legal practitioner without the fiat of the Attorney-General was void ab initio. He referred to THE BLACK’S LAW DICTIONARY 6TH EDITION p.1573 for the definition of the word void and contended that the appeal does not exist in law and so cannot be taken over by the Attorney-General. He relied on ZANGA V. GOVERNMENT OF KANO STATE (1986) 2 NWLR (PT. 22) 402 AT 410 and urged the Court not to enthrone illegality. He said that the exercise of the power of the Attorney-General in Section 211 (1) of the Constitution is subject to the stricture in sub-section 3 of the said Section. He urged the Court to resolve issue 2 in favour of the appellants.
In issue 3 learned Counsel said the learned trial Judge erred by referring to, and relying on sections 45(2) and 454(3) of the Criminal Procedure Law Cap 39 Laws of Akwa Ibom State in his decision without inviting the parties to address him on the said sections. He relied on ONWUNARI LONG JOHN VS. CHIEF CRAWFORD N. BLAKK & ORS. (1998) 5 SCNJ P. 68 and KOTOYE V. CBN (1989) 1 NWLR (PT. 98) 419. He urged the Court to resolve the issue in the negative. He urged the Court to allow the appeal and set aside the ruling of the lower Court.
In his brief of argument learned Counsel for the Respondent argued issue 1 and 2 together. He relied on Section 451 (1) of the Criminal procedure Law (supra) and submitted that the notice of appeal was validly filed, and the power of the Attorney-General in Section 211 of the 1999 Constitution was properly exercised in taking over the appeal, adding that the Attorney-General is not limited in the exercise of the powers within the said section. He argued that the appellants are not in a position to know whether or not the Attorney-General’s fiat was sought and obtained to initiate the appeal.
He relied on CONTROLLER, NIGERIA PRISONS SERVICES, IKOYI LAGOS & 2 ORS VS. DR. FEMI ADEKUNYE & ORS. (No.1) (2002) 15 NWLR (PT. 790) 318 AT 323-324. He said that the case of COP V. ENWAKAYI (supra) cited by the appellant is not applicable as the appeal here was taken over by the Chambers of the Attorney-General and it is immaterial whether or not a fiat was issued to the private legal practitioner who initiated the appeal. He said that the taking over of the ….. Cured any irregularity in the notice of appeal. He urged the Court to dismiss the appeal on the two grounds from which issues 1 and 2 were framed.
In issue 3 learned Counsel conceded that the trial Court cannot raise issues by itself and rely on same in its decision without calling on the parties to address it on the issues raised which he said was not the case in this appeal. He contended that a trial Court has a duty to deliver a ruling judgment considering the facts of the case and the authorities cited and uncited. He said the Court merely referred to Sections 457(2) and 454(3) of the Criminal Procedure Law to determine whether the notice of appeal was proper or not. He said Counsel for the parties had argued the point but did not advent to the sections of the Law, adding that the Court merely provided “the lacuna which is allowed in law. Counsel argued that the reference to and reliance on the said sections of the law did occasion a miscarriage of justice. He urged the Court to dismiss the appeal on ground 3 of the grounds of appeal.
He urged the Court to dismiss the appeal and affirm the ruling of the Court below.
In his reply brief learned Counsel for the appellant impugned as misinterpretation, misapprehension and misapplication of Section 211 of the 1999 Constitution the assertion of learned Counsel for the respondent that “this power has no limitation.” He said Section 211 (2) of the Constitution envisages exclusion of outsiders unless and until they are permitted to come in through a fiat. He referred to C.O.P. v. EMWAKAYI (supra) 1552 at 1531 ratio 10. He contended that the requirement to have regard to public interest, the interest of justice and prevention of abuse of legal process places a legitimate limitation on the powers of the Attorney-General in the prosecution of criminal matters. He faulted the argument of the Respondent that the taking over of the proceedings cured any irregularity and submitted that the Attorney-General cannot take over what is void.
He referred to NBCI v. INTGAS LTD (2005) 125 LRCN 614 and said the duly to allow parties address it on an issue arises when the Court raises the issue suo motu. He relied on THE STATE VS MOSHOOD OLADIMEJI (2003) 15 NSCQR 173 and UNIVERSITY OF CALABAR v. ESSIEN (1996) 44 RCN 2280 AT 2282.
Learned Counsel urged the Court to reject all the points raised in the Respondent’s Brief and to allow the appeal.
Learned Counsel for the Respondent argued issues 1 and 2 together. The two issues are Interwoven. The fate of the one determines the fate of the other. I will take a cue from learned Counsel and deal with the two issues together, but first, I will dispose of issue 3. Learned Counsel for the appellant impugned the ruling of the lower Court on the ground that that Court referred to, and relied on Sections 453 and 454 of the Criminal Procedure Law of Akwa Ibom State without calling for Counsel’s addresses on the said Sections. He said failure to give the parties the opportunity to be heard violated the right of the appellant to a fair hearing. The relevant portion of the ruling of the lower Court is hereunder reproduced:
“In this case, can it be said that the notice and grounds of appeal filed by the said Aniefiok Ekwere Esq. were incurably bad or void ab initio? To answer the question one way or the other recourse must be made to the relevant statute on the matter. It is Criminal Procedure Law Cap. 39 Laws of Akwa Ibom State to which none of the two Counsel referred in……. course of his argument. Chapter 12 Part 50 of that Law provides for Criminal Appeals from Magistrates’ court to High Courts. Section 451 (2) and 454(3) thereof as well as Forms 24 and 26 in the Schedule to that Law provides that the notice and grounds of appeal shall be signed by the appellant or by his Solicitor.”
See pages 60-61 of the records. There is nothing recondite in the Sections and forms of the Criminal procedure Law invoked by the Court below suo motu to warrant address of Counsel. The lower Court invoked the Law regulating the issue before it. Its reliance on the said sections and forms to determine whether to justify or damnify the notice and grounds of appeal signed by a private legal practitioner who held watching brief for the complainant at the trial without calling learned Counsel to address it on the sections cannot be faulted in the circumstances of this case. Whether the lower Court arrived at the correct decision by relying solely on the said section is a different matter and remains to be seen. As argued by learned Counsel for the Respondent the fact that the lower Court did not invite Counsel to address it on the sections did not cause any miscarriage of justice or prejudice the appellant. In my view ground 3 of the appeal from which issue 3 was distilled was more, or less motivated by the lower Courts mild rebuke for failure of learned Counsel for the parties to refer to the Law regulating the mailer in controversy.
In any case a judge, whether in the trial or appellate Court, is not, and is not expected to be, a rubber stamp of learned Counsel for the parties in the matter of Law and rules, practice and case law applicable to any matter in issue before him. A judge invests time, resources and effort in research in writing a judgment no matter the erudition exhibited by learned counsel in their addresses. It is not practicable and will result to endless delay in the disposal of cases to request …….. to call for address of counsel before he can refer to any law or authority as already referred to by learned counsel for the parties in their addresses. Its not necessary. Therefore issue 3 against the appellant.
Section 211(1)(2) and (3) of the Constitution of the Federal Republic of Nigeria provide “S.211(1) The Attorney-General of the 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.
S.211(2) The powers conferred upon the Attorney-General of a State under subsection(1) of this section may be exercised by him in person or through officers of his department.
S.211(3) In exercising his powers under this section, the Attorney-General of a State shall have to the public interest, the interest of justice and the need to prevent abuse of legal process.”
“Criminal proceedings” is not limited to criminal proceedings in the trial Court. The term includes proceedings in the appellate Courts. The State Attorney-General can exercised the powers conferred by S.211 of the Constitution in relation to Criminal proceedings at trial and appellate levels. Also the notice of appeal in a criminal case forms part of the criminal proceedings it initiates. In other words the notice and grounds of appeal filed by a private legal practitioner who held a watching brief for the appellant in the trial Court constitute criminal proceedings within the meaning of S.211(1) of the Constitution. The issue in this appeal is the validity vel non of the criminal proceedings instituted by the private legal practitioner by the filing of the notice and grounds of appeal and ipso facto whether or not the Attorney-General can take over and continue the criminal proceedings. In DIRECTOR OF PUBLIC PROSECUTIONS v. AKOZOR (1962) ALL NLR 235 the then Federal Supreme Court made a distinction between the power of the DPP to commence criminal proceedings by instituting, undertaking or taking over criminal proceedings, and the power to appear for the State after the commencement of the proceedings. The institution undertaking or taking over of criminal proceedings can be done by the DPP in person or delegated to …..department. The latter can be undertaken by the DPP in person or delegated to officers of his department AND to private legal practitioners. Mr. Aniefiok who held watching brief for the complainant at the trial and who instituted the criminal proceedings is or was at the material time) not an officer in the department of the Attorney General of Akwa Ibom State. He could therefore not institute the criminal proceedings with or without the authority of the Attorney-General of Akwa Ibom State.
Learned Counsel for the appellant submitted that the exercise of the power of the Attorney-General of Akwa Ibom State is curtailed by the stricture in subsection (3) of Section 211 of the Constitution. On the other hand learned Counsel for the Respondent contended that the power conferred on the Attorney-General by Section 211 (1) of the Constitution has no restriction. I agree with learned Counsel for the appellant that the requirement of Section 211 (3) that the Attorney-General, in the exercise of his power under Section 211 (1) “shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process” imposes a limitation on the exercise of the power conferred. Sub section (3) of Section 211 of the Constitution, restrictive of the power of the Attorney-General under Section 211 is in practical terms subjective and not justiceable. See the STATE V. ILORI (1993) 3 SCNLR 94. It cannot be relied on to determine the issues in this appeal.
Can it be said, from the available records, that Mr. Ekwere a private legal practitioner who held a watching brief for the complainant at the trial, was expressly or impliedly delegated by the Attorney-General of Akwa Ibom State to institute the criminal proceedings in this appeal? Could delegation by the Attorney-General be implied by the fact of learned Counsel holding, watching brief for the complainant? In strict legal sense the complainant is the Commissioner of police. However, the victim of the alleged crime is usually and popularly referred to as the complainant. The Commissioner of Police could not, from the records, have retained the services of Mr. Ekwere to hold a watching brief for the complainant: If such authority was given orally or in writing it was no so stated in the records of proceedings. It cannot, in the circumstances, be said that the Attorney-General by implication from, and acquiescence in, the fact of private legal practitioner holding a watching brief for the complainant, granted authority to appeal in the matter. In my view learned Counsel Mr. Ekwere was instructed by the victim of the alleged crime to protect their interest in the N300,000 speed boat allegedly stolen but recovered. The complainants for whom the learned Counsel held brief were the victims of the alleged crime and not the Commissioner of Police, the legal complainant. The Attorney-General did not by implication delegate power to Mr. Ekwere to institute criminal proceedings in this appeal. Did the Attorney-General granted express authority to Mr. Ekwere to institute the criminal proceedings? Rather than meet the challenge, learned Counsel for the respondent waffled on whether or not the Attorney-General give his fiat to Mr. Ekwere. First, learned Counsel submitted that the appellants, not being officers in the Chambers of the Attorney-General are not in a position to know whether or not the Attorney-General granted this fiat to the private legal practitioner to institute the proceedings. Secondly, he argued that it is immaterial whether or not a fiat was issue to the legal practitioner to initiate the proceedings and thirdly that any irregularity in the criminal proceedings was cured by the ….. Attorney-General. From what has been said so far Mr. Ekwere cannot institute the proceedings with or without the authority of the Attorney-General and such authority, if it was had and obtained, should have been disclosed. Since no such authority was disclosed the appellants were right to have concluded that none was granted. The notice of appeal, filed by a private legal practitioner is void ab initio. There is nothing that can be taken over by the Attorney-General and the issue of irregularity being cured by the takeover does not arise. Even if a fiat had been issued the notice of appeal would still be void for such fiat can only empower the private legal practitioner to represent the State in an existing criminal proceeding. See DPP v. AKAZOR (supra).
The notice of appeal filed by the private legal practitioner is null and void and consequently, there was no appeal for the Attorney-General to takeover. I resolve issues 1 and 2 in favour of the appellants.
I allow the appeal as meritorious and set aside the ruling of the lower Court. For the purpose of clarity and avoidance of doubt there is no appeal as of now against the judgment of the Chief Magistrate’s Court, Eket Akwa Ibom State in Charge No. MEK/118/C/2002.
JEAN OMOKRI, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Ngwuta, JCA, and I completely agree with his reasoning and conclusion that the appeal is meritorious, I just wish to add these few words of mine for emphasis.
The present “appellant”, was the complainant in Charge No. MEK/118/C/2002 at the Magistrate Court, Eket, Akwa Ibom State, he was not a party to the criminal proceedings on trial. The complainant was not the accused or one of the accused persons at the Magistrate Court. He was not charged with any offence and neither did he plead to any charge.
The “appellant” was not the prosecutor at the trial.
From my point of view, the central and crucial issue is whether there, was a proper and competent appeal before the court below. The present “appellant” in reality was the victim of an offence and a complainant at the criminal ‘trial before the Magistrate Court, Eket, in Charge No. MEK/118/C/2002. He made a complaint to the Police wherein he alleged that the 1st accused, Billy Ikpongette stole a boat valued at N300,000.00 which was in his actual possession contrary to section 390 of the Criminal Code. He alleged that the 2nd accused, Omojara Ogunyemi received the said boat from the 1st accused; Billy Ikpon…………. Same to be stolen contrary to section 422 of the Criminal Code. The 1st and 2nd accused persons (now respondents) were acquitted by the Magistrate Court, Eket, following a no case submission made by their counsel, Mr. Ekanem.
Aggrieved by the acquittal of the 1st and 2nd accused persons, the present “appellant” appealed to the court below.
In criminal cases, where a complainant makes his complaint to the police, if a criminal case is disclosed the subsequent criminal prosecution is done by the police at the Magistrate Court as it is in the instant case on appeal or by the state as the case may be.
A crime committed is against the State and not necessarily against the victim of the offence or complainant. Except in a case of private prosecution initiated with the consent of the Attorney-General of the State concerned, the victim or complainant is at best, a Prosecution Witness in the trial. Such is the case of the present “appellant”. He was undoubtedly a complainant in Charge No. MEK/118/C/2002 at the Magistrate Court, Eket, Akwa Ibom State. He was not a party to the criminal proceedings or trial. He was not the accused person. He was not charged with any offence and neither did he plead to any charge. He was not the prosecutor at the trial at the Magistrate Court, Eket.
At this juncture, it is necessary that I point out that no appeal lies from a decision of a Court unless it is conferred by statute. See Boardman vs. Sokoto N.A. (1965) NMLR 329. In Ugwu vs. A-G, E.C.S. (1975) 6 SC 13, Coker, JSC , (of blessed memory) held at page 16 that:
“Undoubtedly, all rights of appeal are statutory and in order to exercise a right of appeal it must be demonstrated by the prospective appellant that such a right………… been or is conferred on him by some statute…….” Also in Eke v. M.N.D.C. (19….) ………. All NLR 329, the Supreme Court also held that:
“…..All rights of appeal must be guaranteed by statute and a person who cannot show that his right to appeal is provided for in a law cannot have his appeal entertained……….”
There are no provisions in the 1999 Constitution on rights of appeal from the subordinate Courts (including Magistrate Court) to the High Court. The rights of appeal are therefore in the main, those conferred by the various Magistrate Court Laws of the States. In the instant case on appeal the right of appeal from the Magistrate Court in Akwa Ibom State in criminal matters are stated in sections 55(1) and 57 of the Magistrate Courts Law, Cap 82 Laws of Akwa Ibom State and they provide thus Section 55(1):
“An appeal lies as of right to the High Court by a person sentenced by a Magistrate’s Court in criminal proceeding”
Section 57:
“The Prosecutor may appeal to the High Court from an acquittal or dismissal where –
(a) an accused has been acquitted; or
(b) an order of dismissal has been made by a Magistrate.”
The present “appellant” was not a person sentenced by the Magistrate Court neither was he of the Prosecutor. Therefore, he cannot appeal from the decision of the Magistrate Court. Subject to the constitutional powers of the Attorney-General to take over criminal proceedings; the right of appeal is that of the accused person or the prosecution. Only parties to a criminal case can appeal.
In Akinbiyi vs. Adelabi (1956) ….1 FSC 45, the supreme Court while considering the provisions of section 71 of the magistrate Court law (Western Region) 1954 held that a person aggrieved under the section, giving right of appeal, means one of the parties to the proceedings and does not include a person, not such a party, even if that person is the one against whom the alleged offence was committed. See COP v. Ededey (1963) 1 All NLR 424. Also in Onitiri v. COP (1963) NNLR 63, Skinner, J., held that the appellant who was the complainant in the criminal, proceedings before the Magistrate, had no right of appeal because he was not charged with nor did he plead to any offence.
It is crystal clear from the plain and unambiguous provisions of sections 55(1) and 57 of the Magistrate Courts Law of Akwa Ibom State, that the complainant, now the purported “appellant”, had no right of appeal from the decision of the Magistrate Court in Charge No. MEK/C/118/C/2002.
It follows also that Mr. Aniefiok Ekwere, Esq. who held a “watching brief”, was not a counsel to any of the parties in the criminal proceedings.
Since the “appellant” had no right of appeal, he being merely a complainant, his counsel, Mr. Ekwere who held a “watching brief” for him, had no right to file an appeal against the said decision of the Magistrate Court, Eket, Akwa Ibom State. Therefore, the purported appeal filed by Mr. Ekwere is a nullity.
A nullity is in law an act which is void and lacking of any legal effect or consequence whatsoever. It is beyond remedy. In Okafor vs. A-G, Anambra State (1991) ……. NWLR (pt.200) 659, it was held that:
“A nullity law a void act, an act which has no consequence. The Act is not only bad and as was stated by Denning L.J. in UAC v. Macfoy (1961) 3 All ER 168, is incurably bad.”
See Obimonure vs. Erinosho (1966) 1 All NLR 250; Ogbu VS. Urum (1984) 4 SC 1; Nwosu vs. Udeaja (1990) 1 SCNJ 167 and Aladegbemi vs. Fasanomade (1988) 3 NWLR (Pt. 81) 129.
Black’s Law Dictionary 6th Edition at page 1573 defines void as:
“Null, ineffectual, nugatory having no legal force or binding effect; unable in law to support the purpose for which it was intended.”
A void act is nothing. You cannot put something on nothing and expect it to stand it will collapse. That being the case there was nothing before the Court below for the Attorney-General to take over under section 211 (1) (b) of the 1999 Constitution. The powers of the Attorney-General in section 211(1) (b) of the 1999 Constitution is only exercisable where, in the first instance, there is a regular, proper and competent proceeding.
Where, as in the instant appeal, there is no competent appeal before the court below, the purported taking over of the proceedings was an abuse of court process and an exercise in futility.
In Madukolu & Ors. vs. Nkemdilim (1962) 1 All NLR 587 at 589, Bairamian F. J. held thus:
“A court is competent when:
(1) It is properly constituted with respect to the number and qualification of its members;
(2) the subject-matter of the action is within its jurisdiction;
(3) the action is initiation by due process of law, and
(4) any condition ……………… to the exercise of its jurisdiction has been fulfilled.
Any defect in the competence of a court renders the proceedings before it a nullity; a defect of competence being extrinsic to the adjudication.”
It follows from the above that the submission of the learned counsel for the respondent that the taking over of the proceedings by the Attorney-General cured the defect in the proceedings is a gross misconception and it has no legs to stand.
Moreover, the powers of the Attorney-General under section 211 (1) and (2) of the 1999 Constitution is somewhat circumscribed by subsection (3) which provides: .
“In exercising his powers under this section, the Attorney-General of a State shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.”
Having shown that the appeal at the court below is incompetent, null and void, it is a clear abuse of the legal process which the Attorney-General is constitutionally bound to prevent, he therefore cannot take over such a proceeding as in the case in the instant appeal because the provision of section 211 of the 1999 Constitution did not contemplate or envisage void or absurd legal act. Therefore, the void processes filed by the counsel for the complainant were not capable of being taken over by the Honourable Attorney-General in person or through any counsel in his office.
When the appellant claims that the act complained of was null and void, the court will be slow to allow the illegality to continue as that will amount to the court enthroning illegality. See Zango v. Govt. of Kano State (1986) 2 NWLR (pt.22) 402 at ……
It is for the above reasons and the fuller reasons in the lead judgment that I agree with my learned brother, Ngwuta, JCA, that the .appeal is meritorious. I also allow the appeal and I abide with the consequential orders in the lead judgment.
MOJEED A. OWOADE, J.C.A.: I had a preview of the lead judgment just delivered by my learned brother Ngwuta JCA. I agree with the reasoning and the conclusions. I also abide with the consequential orders.
Consequent upon the acquittal of the Respondents in the Chief Magistrate Court, Eket, Akwa Ibom State upon charges of stealing and receiving stolen property respectively under Sections 390 and 427 of the Criminal Code Cap 31 Vol. 2 laws of Cross River State, Mr. Aniefiok Ekwere Esq who held a watching brief for the complainant at the Chief Magistrate Court signed a Notice of Appeal for the Complainant/Appellant in initiating the complainant’s appeal against the Ruling of the Chief Magistrate Court which acquitted the Accused/Respondents on a “No case submission”.
Before the High Court sitting on appeal, an officer from the Ministry of Justice Akwa Ibom State took over the case file from Mr. Aniefiok Ekwere and convinced the learned trial Judge that by virtue of Section 451(2) and 451(3) of the Criminal Procedure Law Cap. 39 laws of Akwa Ibom State, “the notice and grounds of appeal shall be signed by the Appellant or by his solicitor”. The learned trial Judge then held that “Aniefiok Ekwere Esq. who was solicitor holding watching brief for the Complainant/Appellant was therefore entitled to sign the notice and grounds of appeal. Consequently, he ordered that the preliminary objection raised by the Respondent’s Counsel be dismissed.
Dissatisfied with the Ruling on the preliminary objection before the lower court, Mr. Ekanem of Counsel to the Respondents lodged this appeal before this court. The central issue in this appeal is whether it is right for the victim “complainant” in a criminal case to initiate and maintain an appeal against the decision of the trial court upholding a no case submission raised by Counsel for the Accused without a fiat sought and obtained from the Attorney-General of the State.
The learned Counsel for the Respondent before us argued that by virtue of the provision of Sections 451(2) and 451 (3) of the CPL Cap. 39, the Solicitor was entitled to sign the notice and grounds of appeal just as much as Complainant or Appellant could do. And that the taking over of the criminal appeal proceedings by a law officer would by Section 211 of the 1999 Constitution cure any defects if any in relation to the filing of the appeal.
Unfortunately, the misconception in the above argument lies in taking the victim of, the offence at the ‘Magistrate Court’ for the complainant and further regarding such complainant as the Appellant for the purpose of a criminal appeal. Truly, in common parlance, the victim of an offence is often referred to as the Complainant, but in law and reality the Complainant in a Criminal case before a Magistrate Court is the State, often represented by the Commissioner of Police.
Thus in, answering the question what is a charge vis-a’-vis a complaint, it could be said that a complaint is a formal charge accusing a person of an offence. And in the case of ….(2005) All FWLR (Pt.949) 471 at 532, Pats Acholonu JSC in defining a charge had this to say “In legal parlance what indeed is a charge it is indeed a denouncement by which an authorized person or body invested by statutes could lay a complaint against someone tending to show that an offence or some form of breach of law or ethics of the profession has been committed…”(Underlining emphasis supplied).
Applying the above definitions to the facts and circumstances of the instant case, it would be seen that the Counsel who held watching brief for the victim of the offence was never in a strict legal sense, the legal practitioner to the Complainant and therefore could not have been capable even under the provisions of Sections 451 of the CPL Cap. 39 to sign a notice and grounds of appeal for the Complaint/Appellant.
Secondly, the submission of the learned Counsel for the Respondent that the taking over of the criminal appeal by a Law Officer in the Attorney-General’s Chambers would cure the defect in the notice and grounds of. appeal signed by an unauthorized private legal practitioner cannot be seriously countenanced. This is first, because the filing of the Notice and Grounds of Appeal constitutes the initiation of the criminal appeal and this crucial or fundamental stage which clothed the court with jurisdiction on the matter was authorized by a fiat from the Attorney-General. Second are equally important, the power of public prosecutions of the Attorney-General of State under Sections 211(1) and (2) of the 1999 Constitutions seen … restricted by the proviso in subsection (3) of Section 211 of the 1999 Constitution to wit:
“(3) In exercising his powers under this section, the Attorney-General of a State shall have regard to the public interest, the interest of Justice and the need to prevent abuse of legal process.”
Clearly, it would be a serious abuse of the legal process if a State Attorney-General attempts to take over proceedings in a criminal appeal which was not initiated with his consent, especially when the process of initiation of the said proceedings was defective and was incapable of invoking the jurisdiction of the court.
For these reasons and the fuller reasons given in the lead judgment of my learned brother Ngwuta JCA. I also allow the appeal.
Appearances
UMOEKEYO UNO ESQ.For Appellant
AND
ODUDU AFIA ESQ.For Respondent
