LUCY ONWUDINJO v. THE STATE (2014)

LUCY ONWUDINJO v. THE STATE

(2014)LCN/7533(CA)

In The Court of Appeal of Nigeria

On Friday, the 14th day of November, 2014

CA/E/37/2013

RATIO

APPEAL: PRELIMINARY OBJECTION IN APPEAL; THE CONDITION FOR A PRELIMINARY OBJECTION TO BE COMPETENT

This court and the apex court had in several decisions stated that where a notice of objection is formally raised or in the brief of argument, the same preliminary objection must be formally moved at the hearing of the appeal, but failing which, the preliminary objection will be deemed as having been abandoned by the objector.
The apex court, per my Lord Ogunbiyi, JSC., most recently re-echoed the above principle in Owelle Rochas Anayo Okorocha V. Peoples Democratic Party & Ors (2014) 26 WRN 1 at 47 – 48, thus:
“For a preliminary objection to be competent, it must be raised formally. The failure to comply with the requirement is detrimental because it renders the entire move of no effect and liable to be discountenanced. Decided cases by this court are well pronounced and settled on this point. In the case of Mrs. Simisola Carew V. Mrs. Iyabo Omolara Oguntokun & 5 Ors. (2011) 45 NSQLR 1254; (2011) 5 NWLR (pt. 1240) 376 at 404 – 405, paragraphs H – C, for instance, this court per Aloma Muktar, JSC (as she then was) at pages 1283 – 1284 restated that a notice of preliminary objection must be formally moved, otherwise it will be deemed abandoned. This is what His Lordship had to say:
“Authorities abound that make the formal moving of preliminary objections by parties moving them at the hearing of appeals necessary, as required by the law. I however wish to re-echo the words of Obaseki, JSC in Nsirim’s case:
…the objection should have been by way of motion on notice before the hearing of the appeal so that arguments on it can be heard by the court. While notice of objection may be given in the brief it does not dispense with the need for the respondent to move the court at the oral hearing of the relief prayed for.
per. TOM SHAIBU YAKUBU, J.C.A.

APPEAL: GROUND OF APPEAL; THE CONDITIONS FOR A GOOD GROUND OF APPEAL

I have carefully considered the sole ground of appeal. I am unable to see what is wrong with it. “The law is well settled that a good ground of appeal must be concise, elegantly drafted and straight to the point such that as soon as it is read, the error and misdirection complained against can be immediately understood” – per Okoro, JCA (as he then was) in Izedonmwen V. Union Bank Plc (2012) 6 NWLR (Pt. 1295) 1 at 27.

There has been a paradigm shift from technicality to the doing of substantial justice with respect particularly to the formulation and consideration of grounds of appeal, in recent years, such that once the complaint of the appellant in a ground of appeal is understood and the other party is not misled by it, the ground of appeal would be taken and accepted as a good ground of appeal.
The apex court gave this admonition in Aderounmu V. Olowu (2004) 4 NWLR (pt. 652) 253; (2000) 2 SCNJ 180, to wit:
“The rules of appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of technicality, whereby the court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure, both in the Supreme Court and in the Court of Appeal, that the appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal; and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice and information to the other side, of the precise nature of the complaint of the appellant and consequently of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out notwithstanding that it did not conform to a particular form. What is important in a ground of appeal, and the test the court should apply, is whether or not an impugned ground shows clearly what is complained of as an error in law and what is complained of a misdirection or as the case may be, error of fact.”
This pragmatic approach to a consideration of an alleged bad ground of appeal and defective particulars now represents the extant position of the law as re-echoed by the apex court in Hambe V. Hueze (2001) 4 NWLR (pt. 703) 372; (2001) 5 NNSCQLR 343 at 352 and more recently in Abe V. University of Ilorin (2013) LPELR – 20643 (SC), to the effect that:
“Learned counsel must be reminded that grounds of appeal may stand on their own once they represent the appellant’s complaint against the decision he is not satisfied with and in respect of which grouse he seeks the appellate court’s intervention. Lack of or defective particulars in a ground of appeal would not necessarily render the ground itself incompetent. See Prince (Dr) B. A. Onafowokan & Others V. Wema Bank Plc & Others NSCQLR Vol. 45 (2011) 181 SC; Best Nigeria Ltd v. Black Wood Hodge (Nigeria) Ltd and others NSCQLR Vol. 45 (2011) 945.” per. TOM SHAIBU YAKUBU, J.C.A.

PRACTICE AND PROCEDURE: POWER OF THE ATTORNEY GENERAL; WHETHER THE ATTORNEY GENERAL CAN AUTHORIZE A PRIVATE LEGAL PRACTITIONER TO HANDLE A MATTER FOR THE STATE
Unarguably, there is no dearth of authorities of the apex court and this court on the issue thrown up in this appeal. We shall begin with the provisions of Section 211(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. It provides, inter alia:
“211(1) The Attorney General of the 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 persons; 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 my clear understanding of sub-section 1(b) of Section 211 of the 1999 Constitution, reproduced above, that whilst the Attorney General has the power to institute and undertake criminal proceedings against any person under Section 211 (1) (a); he also has the power to take over and continue with the prosecution in any criminal proceedings which may have been instituted by any other authority or persons. Therefore, the power to institute and undertake criminal proceedings in a court of law, is not exclusive to the Attorney General.
He, however, has the exclusive power to take over and continue or even discontinue any such criminal proceedings that may have been instituted by any other authority or person, by virtue of Section 211 (1) (b) & (c). It is instructive and noteworthy that Section 174 (1)(a)(b) & (c) of the 1999 Constitution which deals with the powers of the Attorney General of the Federation, to undertake, institute, take over and continue or discontinue any such criminal proceedings which may have been instituted by any other authority or person, is in pari material with the powers of the State Attorney General, provided for in Section 211 (1) (a)(b) & (c) of the 1999 Constitution.
In Olusemo V. Commissioner of Police (1999) 11 NWLR (Pt. 575) 547 at 558, which was decided under Section 160 of the 1979 Constitution, which is in pari material with section 174 of the 1999 Constitution, it was held that the Nigeria Police has the power as “any other authority” to undertake criminal prosecutions. This was followed by Comptroller, Nigerian Prisons Services, Ikoyi, Lagos & Ors V. Dr. Adekanye & Ors (2002) LPELR – 891 SC, which was similarly decided under Section 160 of the 1979 Constitution, which is in pari material with Section 174 of the 1999 Constitution, to the effect that the power donated to the Attorney General to institute and undertake criminal proceedings in a court of law, is not exclusive to him. And that any other authority or person can institute and undertake criminal proceedings in a court of law, just like the Attorney General.
The apex court went ahead to state that there is a presumption of regularity that where any legal practitioner informs the court in any proceedings in court that he has been briefed by the Attorney General to handle the matter for the State, the court must believe him and it is left for the person who objects to the representation by such counsel, to prove otherwise. Furthermore, the apex court held that the communication between the Attorney General as the client and the legal practitioner whom he had briefed is a privileged information which need not be divulged to any person or authority. Hence, there is no requirement that the permission or authority given to the legal practitioner by the Attorney General must be a written fiat which must be tendered in court as evidence of his authorization to handle the matter for the State.

The law is well settled that the court, in its adjudicatory duties, will not read into any law, what was not expressly stated in the Constitution, statute or any enactment. Federal Republic of Nigeria v. Mohammed (2014) 19 WRN 1 at 32 – 33 (SC); Attorney General, Federation V. Guardian Newspapers Ltd (1999) 5 SCNJ 324; (1999) 9 NWLR (pt. 618) 181 at 264.

In Provost, Lagos State College of Education V. Edun (2004) ALL FWLR (pt. 29) 1628; (2004) 6 NWLR (pt. 870) 476 at 495 – 496, the apex court stated:
“A legal practitioner who is not in the employment of the Ministry of Justice of a State, or not a private legal practitioner briefed to appear in a case, or has no fiat or authorization whether from the Attorney General of the State or from any other authorized public officer to appear in a case, cannot represent the State or any of its public officers in the service of the State sued in his public capacity, without a fiat, such a person cannot appropriately appear for such public officers in the case.”
Therefore, a private legal practitioner briefed by the Attorney General to appear in a case has his authorization to handle the matter for that State. If the Attorney General chooses to issue a fiat to the legal practitioner to do so, the former has the discretion to so do, but where he briefed the legal practitioner to handle a matter for the State without issuing a fiat to that effect, that does not distract or remove anything from or whittle down the efficacy of the authorization so donated to the private legal practitioner by the Attorney General. The court has no business to inquire into the authorization by the Attorney General. This is so because,
“Where a party exercised his undoubted and fundamental right to engage a counsel to represent him in a trial, the court has no business into inquiring whether the counsel was regularly or properly briefed. The court must allow the counsel to represent the party without any restriction or any procedural requirement.”
– per Musdapher, JCA (as he then was) in NUR V. NRC (1999) 9 NWLR (Pt. 473) 490 at 500.
See also Oyebode V. Gabriel (2013) ALL FWLR (Pt. 669) 1043 at 1061 – 1062 (CA); Federal Republic of Nigeria v. George Osahon (2006) 2 SCNJ 348 at 358. per. TOM SHAIBU YAKUBU, J.C.A.

JUSTICES

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSAINI Justice of The Court of Appeal of Nigeria

Between

LUCY ONWUDINJO Appellant(s)

AND

THE STATE Respondent(s)

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): The appellant was arraigned before the Enugu State High Court of Justice, holden at Enugu on a two count charge of child stealing contrary to Section 321 of the Criminal Code of Enugu State and False statement/Information to the police contrary to Section 154 (1)(a) & (b) of the Criminal Code of Enugu State. The arraignment of the appellant was at the instance of the Attorney General of Enugu State on 23rd March, 2011. When the case came up on 11th June, 2012 for hearing, one J. O. Ikeyi, Esq., of learned counsel, a private legal practitioner announced his appearance for the Respondent. The learned trial judge asked of him, the Attorney General’s fiat which enabled him to announce his appearance for the prosecution of the case. W. O. Abonyi, Esq., for the appellant, informed the court that he too, wanted to raise the same question with respect to the Attorney General’s fiat which would enable Mr. Ikeyi, to prosecute the case. The latter briefly addressed the court to the effect that he had been briefed and/or instructed by the Attorney General, to conduct the prosecution of the case on behalf of the respondent – The State.
He requested that counsel be directed to prepare and file written addresses in order to ventilate their respective positions on the question raised suo motu by the learned trial judge. The request was granted and both counsel in the case filed and exchanged their written addresses as directed by the learned trial judge.

In his ruling, the learned trial judge agreed with the submissions of Mr. J.O. Ikeyi, to the effect that the latter could represent the respondent without the necessity of procuring a fiat from the Attorney General, before prosecuting the case. W. O. Abonyi, Esq., of learned counsel to the appellant felt dissatisfied with the ruling of R. O. Odugu, J., which was delivered on 20th November, 2012. That is what led to this appeal which was anchored on a sole ground of appeal.

The appellant’s brief of argument, settled by Obiora W. Abonyi, Esq., was dated 10th March, 2013 but filed on 13th March, 2013. Four issues were distilled for determination from the sole ground of appeal. The respondent’s brief of argument settled by J. O. N. Ikeyi, Esq., for the respondent, was dated 21st May, 2013 but filed on 2nd August, 2013. In it, a sole issue for determination was formulated for the determination of the appeal. The appellant’s reply brief of argument dated 20th August, 2014 and filed on 29th September, 2014 was deemed as properly filed and served by this court on 30th September, 2014. At the hearing of the appeal on the same 30th September, 2014, each learned counsel adopted his brief of argument as their submissions on the appeal.

There are some preliminary skirmishes with respect to the appellant’s ground of appeal. In the respondent’s brief of argument, a notice of preliminary objection was raised at paragraphs 4.00 – 4.01, inter alia:
“4.00 NOTICE OF PRELIMINARY OBJECTION
4.01.TAKE NOTICE that the respondent will at or before the hearing of the above appeal pray the court to strike out the sole ground of appeal in the notice of appeal and the issues for determination in the appellant’s brief on the grounds that:
i. The sole ground of appeal which does not flow from the judgment of the court below and issues distilled therefrom are incompetent and liable to be struck out by the court.
ii. The particulars in support of the ground of appeal do not flow from the judgment of the court and no leave was sought and obtained before the particulars were included in the ground of appeal.
iii. The issues formulated from the sole ground of appeal which do not flow from the said ground of appeal are incompetent and liable to be struck out by the court.”

Arguing the preliminary objection, respondent’s learned counsel submitted that grounds of appeal must be based on issues in controversy between the parties at the court below. He placed reliance on Oikharbie V. Inwanfero (no citation); Nigerian Arab Bank Ltd v. Cormax Ltd (1999) 6 NWLR (Pt. 608) 648 at 668; Zaria v. Maituwa (1966) NWLR 59; Oroke v. Edet (1964) NNLR 118. He further submitted that the issue in controversy at the court below was the propriety or otherwise of tendering and admitting in evidence of any written authority given by the Enugu State Authority General to the prosecuting counsel, by virtue of the Practice Directions issued by the Chief Judge of Enugu State. He referred to the ruling of the learned trial judge at lines 16 – 21 of page 71 of the record of appeal.

It is the further contention of the respondent’s learned counsel that since the appellant did not seek for and obtain the leave of the court to canvass the new and fresh issues which formed the sole ground of appeal, upon which the court below did not pronounce the court is without jurisdiction to entertain the ground of appeal. He referred to Ajunwa V. Adeoti (1990) 2 NWLR (pt. 132) 271; Alade v. Alemuloke (1988) (8) 1 NWLR (Pt. 69) 207 at 218. He insisted that particulars “a – f” and “g” under the sole ground of appeal are irreconcilable with the issues canvassed and ruled upon by the court below. Learned respondent’s counsel also submitted that since the grounds of appeal and the issues formulated from it are incompetent, both of them ought to be struck out.

With respect to the second ground of the preliminary objection, respondent’s learned counsel contended that the particulars of the ground of appeal are inconsistent with the sole ground of appeal, hence the particulars must be discountenanced. He relied on Ali V. Albishir (2008) 3 NWLR (pt. 1073) 9 4 at 133 – 134; Globe Fishing Industries Ltd V. Coke (1990) 7 NWLR (pt. 162) 264; Honika Sawmill Nig Ltd v. Hoff (1994) 2 NWLR (pt. 326) 252 and that where a ground of appeal is defective or the particulars do not flow therefrom or are not related thereto, such ground or particulars are liable to be struck out.

Arguing the third ground of the objection, respondent’s learned counsel contended that the sole ground of appeal misrepresented the ratio decidendi of the decision of the court below and that the issues formulated from the ground of appeal are not the issues in controversy and determined by the court below. He relied on authorities such as Management Enterprises v. Otusanya (1987) 4 SCNJ 110; Sha v. Kwan (2000) 5 SC. 189 amongst others and urged that the sole ground of appeal and the issues formulated from it be struck out, and in consequence, that the appeal itself be struck out, for being incompetent.

Responding to ground one of the preliminary objection, appellant’s learned counsel submitted that the inclusion of the word “obtaining” in the notice of appeal did not in any way set up a different case on appeal and that the objection of the respondent borders on technicalities which the courts no longer fancy as they are now committed to doing substantial justice. He relied on Oloruntoba – Oju V. Abdul-Raheem (2009) ALL FWLR (pt. 497) 1 at 29.

With respect to ground 2 of the objection, appellant’s learned counsel submitted that all the particulars in support of the sole ground of appeal are interwoven and not independent and the particulars are provisions of the law which will be considered in consequence of the ruling by the learned trial judge.

He also insisted that the particulars in support of the sole ground of appeal, flow from the latter and urged that the preliminary objection be struck out.
It is noteworthy that at the hearing of the appeal, learned respondent’s counsel, appeared to have forgotten that he had a preliminary objection to move before the appeal was argued by the learned appellant’s counsel. So, it was after the argument of the appeal by the appellant’s counsel that learned respondent’s counsel remembered that he had a preliminary objection against the hearing of the appeal, which he did not move first, before the appeal was argued. This court and the apex court had in several decisions stated that where a notice of objection is formally raised or in the brief of argument, the same preliminary objection must be formally moved at the hearing of the appeal, but failing which, the preliminary objection will be deemed as having been abandoned by the objector.
The apex court, per my Lord Ogunbiyi, JSC., most recently re-echoed the above principle in Owelle Rochas Anayo Okorocha V. Peoples Democratic Party & Ors (2014) 26 WRN 1 at 47 – 48, thus:
“For a preliminary objection to be competent, it must be raised formally. The failure to comply with the requirement is detrimental because it renders the entire move of no effect and liable to be discountenanced. Decided cases by this court are well pronounced and settled on this point. In the case of Mrs. Simisola Carew V. Mrs. Iyabo Omolara Oguntokun & 5 Ors. (2011) 45 NSQLR 1254; (2011) 5 NWLR (pt. 1240) 376 at 404 – 405, paragraphs H – C, for instance, this court per Aloma Muktar, JSC (as she then was) at pages 1283 – 1284 restated that a notice of preliminary objection must be formally moved, otherwise it will be deemed abandoned. This is what His Lordship had to say:
“Authorities abound that make the formal moving of preliminary objections by parties moving them at the hearing of appeals necessary, as required by the law. I however wish to re-echo the words of Obaseki, JSC in Nsirim’s case:
…the objection should have been by way of motion on notice before the hearing of the appeal so that arguments on it can be heard by the court. While notice of objection may be given in the brief it does not dispense with the need for the respondent to move the court at the oral hearing of the relief prayed for.
This preliminary objection not having been raised and argued at the oral hearing, the court of Appeal cannot be condemned as having erred in allowing the then appellant (now respondent) to argue his appeal.”

In the peculiar circumstances of this case, the respondent’s learned counsel only called the attention of the court to his notice of preliminary objection contained in his brief of argument after the appellant’s learned counsel had argued his appeal. This is what learned respondent’s counsel said:
“We wish to draw the attention of the court to my lack of alertness in informing the court that I had a preliminary objection in the respondent’s brief of argument. Since the appellant has already argued his appeal and filed a Reply to the preliminary objection, we urge that the preliminary objection be considered and determined. I adopt the respondent’s brief and refer to pages 4 – 11 which contain the preliminary objection and strike out the appeal.”

Learned appellant’s counsel did not react to the request of learned respondent’s counsel reproduced above. I feel that in the overall interest of justice, the lapse or tardiness on the part of the respondent’s counsel can be tolerated, since he did not completely “forget” that he had a preliminary objection to move at the hearing of the appeal. He goofed and realized that he was not alert in moving the objection before the appellant’s counsel argued his appeal. I think it is more proactive to do this, in order to do substantial justice to the parties in this appeal.

Now let us take a look at the appellant’s sole ground of appeal and the particulars thereunder. They are reproduced for ease of reference, appreciation/comprehension, to wit:
“Ground 1
Error of Law
The learned judge erred in law when he held that the J. O. N. Ikeyi Esq.; a private Legal practitioner can in law prosecute the accused/Appellant in a criminal trial before the court without obtaining and tendering the Honourable Attorney General of Enugu State’s Fiat authorizing him to do so before the court
Particulars of Error
a. Section 195(1) of 1999 Constitution of the Federal Republic of Nigeria as amended in 2011 provides for the office of State Attorney General as Chief Law Officer of each State
b. Section 211(1) provides for the powers of the State Attorney General to institute and undertake criminal prosecutions in any court in the State except court martial in respect of offences created by or under any law of the House of Assembly and other powers.
c. Section 211(2) of the Constitution of the FRN provides that the powers conferred on the Attorney General to prosecute criminal trials may be exercised by him in person or by officers of his department.
d. Section 211(3) of the Constitution of the FRN provides that in exercising his powers the Attorney General of a State shall have regard to public interest, the interest of justice and the need to prevent abuse of legal process.
e. The Supreme Court in the case of STATE V. AIBANGBEE & ANOR (1988) 7 SCNJ, 128 at page 153, the Supreme Court held that institution and undertaking criminal prosecution within the meaning of Section 191 of 1999 Constitution which is similar to Section 195 CFRN 2011 as amended means that Attorney General and his staff can commence and make themselves responsible for criminal prosecutions and not that they cannot brief private legal practitioners to appear on behalf of the Attorney General either alone or together with a member of the Attorney General’s staff.
f. Section 66(1)(a)(iii) of the High Court Law Cap 92 Revised law of Enugu State 2004 provides for that in criminal matters the State may be represented by a legal practitioner duly authorized in that behalf by the Attorney General.
g. The Chief Judge of Enugu State in line with the powers vested in him issued “private Legal Practitioner’s prosecution of criminal cases and Practice Direction, 2009″ which provides for private legal practitioners to tender the fiat by the Attorney General in court before they can commence criminal prosecutions in the State.
h. It will be contrary to the provisions of the Constitution, against public policy and the interest of justice for the powers of the Attorney General of a State to be whittled down with respect to the control of criminal prosecution.”

I think too that, for a holistic consideration of the respondent’s preliminary objection, the issues for determination distilled from the sole ground of appeal be reproduced. They each say:
“1. Whether by the provisions of the 2011 Constitution of the Federal Republic of Nigeria as amended, the powers of the Attorney General have been whittled down with respect to the control of criminal trials in our courts.
2. Whether by the provisions of Section 211 of the CFRN 2011 as amended, and other enabling laws, a private legal practitioner can commence the prosecution of criminal trials in court without first obtaining and tendering of the Attorney General’s fiat authorizing him to do so.
3. Whether the appearance of private legal practitioner in court to prosecute a criminal trial without first obtaining and tendering the Attorney General’s fiat is not against public policy and interest of justice, and abuse of legal process.
4. Whether Section 66(1) (a) (III) of the High Court Law cap 92 Revised Law of Enugu State 2004 and the “Practice Directions 2009″ issued by the Chief Judge of Enugu State with respect to prosecution of criminal cases by private legal practitioners are inconsistent with the provision of Section 211(2) of the Constitution of the FRN 2011 as amended.”

I am satisfied that the sole ground of appeal herein, is good and competent. The particulars a. – g. of the sole ground of appeal are a narration of the statutory provisions with respect to the decision in question whilst particular h. thereof is clearly argumentative. The particulars offend 0.6 r. 2(3) of the Court of Appeal Rules, 2011 which provides that:
“2.(3) The notice of appeal shall set forth concisely and under distinct heads, the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.”
Therefore, all the particulars in support of the sole ground of appeal are each struck out. The above notwithstanding, the sole ground of appeal, in my view, can stand alone as I am guided by the recent decisions of the apex court discussed earlier in this judgment.
To that extent, the preliminary objection against the sole ground of appeal is without merit and it stands overruled.

With respect to the issues formulated for determination by the appellant’s counsel, the first thing that caught my attention and which the respondent’s counsel amazingly did not see, is that the issues are proliferated. How can four issues be distilled from a sole ground of appeal? This is bad and unacceptable. The apex court and this court have in a bagful of authorities stated and re-echoed that it is wrong to distill even two issues from a ground of appeal not to talk of four issues from a ground of appeal. Just see: Adekunle Teriba V. Ayoade Tiamiyu Adeyemo (2010) 47 WRN 155; (2010) 4 SCNJ 59 at 67; Donbraye V. Preyor (2014) 25 WRN 44 at 72; (2014) LPELR – 22286 (CA).

Upon my perusal of the four issues formulated for determination by the appellant’s counsel, it is only issue 2 that can be tied to the sole ground of appeal. Khaled Chami V. United Bank for Africa Plc (2010) 2 SCNJ 23 at 36. The said issue 2, to all intents and purposes, except for semantics and use of language, is the same with the sole issue formulated for determination by learned respondent’s counsel.
Hence issues 1, 3 and 4 formulated by the appellant are each struck out. In my consideration and determination of this appeal therefore, I shall be guided by appellant’s issue 2 vis-a-vis respondent’s sole issue.
It says:
“1. Whether a private legal practitioner briefed by the Attorney-General to prosecute a criminal matter on behalf of the State, must tender a written authority of the Attorney-General to so prosecute the matter in court, before he can be given audience by the court as provided in the Practice Directions issued by the Chief Judge of Enugu State.”

The submissions of the appellant’s counsel on his issue 2 are contained at paragraphs 4.00 to 7.06 of the appellant’s brief of argument. The main thrust of the submission is that learned respondent’s counsel needed the fiat of the Attorney General of Enugu State which he must show to the trial court before he would be permitted to prosecute the case on behalf of the respondent. He referred to Section 211 of the 1999 Constitution of the Federal Republic of Nigeria and some decisions of the Supreme Court such as The State V. Aibangbee & Anor (1988) 7 SCNJ 128 at 153; Tukur V. Government of Gongola State (1988) 1 SCNJ 54 at 65; FRN v. Adewunmi (2007) ALL FWLR (pt. 368) 978 at 982; George V. FRN (2011) ALL FWLR (pt. 587) 664; C. O. P. v. Tobin (2009) ALL FWLR (Pt. 483) 1302 at 1322 – 1323 (CA).

On his part, the respondent’s learned counsel, argued his sole issue for determination at paragraphs 5.00 to 5.53 of his brief of argument. The linch pin of the respondent’s contention is that by virtue of Section 211 (1) & (2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the power donated to the State Attorney General to institute and undertake criminal proceedings can be delegated to private legal practitioners, apart from the officers in the office of the Attorney General. He referred to Adekanye V. FRN (2005) ALL FWLR (pt. 252) 514; DPP v. Akozor (1962) 1 ALL NLR 235; Rabiu v. The State (1980) 8 – 11 sc 130; The State V. Gwonto (1983) 3 SC 62; The State V. Aibangbee (1988) 7 SCNJ 128 at 153; Tukur V. Government of Gongola State (1988) 1 SCNJ 54 at 64. He insisted that a private legal practitioner who was briefed by the Attorney General to appear for the State in any civil or criminal matter is not required under any law to tender in evidence, any proof of such authorization by the Attorney General and that once a counsel appears in any matter in court, it is not the business of the court to inquire into the counsel’s authority as there is a presumption of counsel’s authority to handle the matter for his client. I must state that the submissions of both learned counsel herein, contained in their respective briefs of argument are quite trenchant, well researched and commendable. That is how it should be.

Resolution:
Unarguably, there is no dearth of authorities of the apex court and this court on the issue thrown up in this appeal. We shall begin with the provisions of Section 211(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. It provides, inter alia:
“211(1) The Attorney General of the 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 persons; 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 my clear understanding of sub-section 1(b) of Section 211 of the 1999 Constitution, reproduced above, that whilst the Attorney General has the power to institute and undertake criminal proceedings against any person under Section 211 (1) (a); he also has the power to take over and continue with the prosecution in any criminal proceedings which may have been instituted by any other authority or persons. Therefore, the power to institute and undertake criminal proceedings in a court of law, is not exclusive to the Attorney General.
He, however, has the exclusive power to take over and continue or even discontinue any such criminal proceedings that may have been instituted by any other authority or person, by virtue of Section 211 (1) (b) & (c). It is instructive and noteworthy that Section 174 (1)(a)(b) & (c) of the 1999 Constitution which deals with the powers of the Attorney General of the Federation, to undertake, institute, take over and continue or discontinue any such criminal proceedings which may have been instituted by any other authority or person, is in pari material with the powers of the State Attorney General, provided for in Section 211 (1) (a)(b) & (c) of the 1999 Constitution.
In Olusemo V. Commissioner of Police (1999) 11 NWLR (Pt. 575) 547 at 558, which was decided under Section 160 of the 1979 Constitution, which is in pari material with section 174 of the 1999 Constitution, it was held that the Nigeria Police has the power as “any other authority” to undertake criminal prosecutions. This was followed by Comptroller, Nigerian Prisons Services, Ikoyi, Lagos & Ors V. Dr. Adekanye & Ors (2002) LPELR – 891 SC, which was similarly decided under Section 160 of the 1979 Constitution, which is in pari material with Section 174 of the 1999 Constitution, to the effect that the power donated to the Attorney General to institute and undertake criminal proceedings in a court of law, is not exclusive to him. And that any other authority or person can institute and undertake criminal proceedings in a court of law, just like the Attorney General.
The apex court went ahead to state that there is a presumption of regularity that where any legal practitioner informs the court in any proceedings in court that he has been briefed by the Attorney General to handle the matter for the State, the court must believe him and it is left for the person who objects to the representation by such counsel, to prove otherwise. Furthermore, the apex court held that the communication between the Attorney General as the client and the legal practitioner whom he had briefed is a privileged information which need not be divulged to any person or authority. Hence, there is no requirement that the permission or authority given to the legal practitioner by the Attorney General must be a written fiat which must be tendered in court as evidence of his authorization to handle the matter for the State.

In Tukur v. Government of Gongola State (supra) at page 64, the eminent jurist Oputa, JSC stated, inter alia:
“Since it is the Appellant who is asserting ‘that Dapo Abudu Esq., Legal Practitioner, who signed the Brief supporting the Notice of Appeal in this matter, as well as Chief Gani Fawehinmi who purportedly appeared for the Respondent (then Appellant), cannot do so unless duly authorized in writing by the Attorney-General of Gongola State…’ The onus is on him to prove that these two legal practitioners had no such “due authority”. Even if one agrees, for the sake of argument, that Section 105 (2) of Cap 49 of 1963 applies (which in fact is not the case), one has to point out that that section did not stipulate that such authorization should be “in writing”. I will decline to read into any enactment words which are not to be found there and which will alter its operative effect. West Derby Union Vs. Metropolitan Life Assurance Society (1897) A. C. 647 per Lord Hershall at p. 655.”
And in the State V. Aibangbee (1988) 7 SCNJ 128 at 153, the learned law lord, Eso, JSC., emphatically held, to wit:
“However, as Mr. Asemota, SAN did not withdraw his objection, I hereby rule, as this court had had occasion to rule before, that “instituting and undertaking” a criminal prosecution within the meaning of Section 191 of the Constitution of the Federal Republic of Nigeria 1979, “means the Attorney-General and his staff can commence and make themselves responsible for criminal prosecutions, and not that they cannot brief private practitioners to appear on behalf of the Attorney-General either alone or together with a member of the Attorney-General’s staff.
Mr. Asemota’s objection is overruled.”
Further see the decision of the apex court more recently in Nnakwe V. The State (2013) 7 SCNJ 179 at 202 – 203 per Ogunbiyi, JSC, who restated the law, inter alia:
“For instance, with reference to Section 36 of the Constitution of the Federal Republic of Nigeria, 1999, the law is well settled that every party to a case has an unfettered right of representation by counsel of his choice. See Nwambe V. The State (1995) 3 NWLR (Pt. 384) 358. By implication therefore, this right, also enures to the benefit of the respondent, who is a party to the appeal at hand.

Decided authorities of this court have also held out that where a counsel announces appearance on behalf of a party in any matter, the authority to challenge such representation only lies with the same party. Furthermore, it has also been sufficiently emphasized by this court that the competence or otherwise of a private legal practitioner and his authority to prefer a charge on behalf of the Attorney- General of the Federation cannot be questioned by any other person. See the case of FRN v. Adewunmi (2007) 10 NWLR (pt. 1042) 399 wherein Kalgo, JSC at pages 416 – 417 held and said:-
“The Court of Appeal properly recognized this when it said:- “There is no doubt that under the scheme of things in 1997, the Attorney-General of the Federation could in appropriate circumstances authorize a private legal practitioner to undertake the prosecution of offences… It is also noteworthy that only the Attorney-General of the Federation could at the time raise questions as to whether or not such authority to prosecute was properly given.” I entirely agree with the Court of Appeal on this.”
My Lord Ogunbiyi, JSC, added that:
“Also at page 424 of the said report and in his concurring contribution, Ogbuagu, JSC had this to say:-
“Firstly, when or where a counsel announces that he is appearing for a party, it is now firmly settled that it is not for the court to start an enquiry into his authority and the court never does.”

I think that I should now draw the curtain on this appeal.
However, let me say a word with respect to the submissions of learned respondent’s counsel regarding the 2009 Practice Directions issued by the Hon. Chief Judge of Enugu State, titled “Private Legal Practitioner’s Prosecution of Criminal Cases and Practice Directions, 2009”. It was the said Practice Directions which prompted the learned trial judge in asking Mr. Ikeyi on 11th June, 2012 whether he was armed with the Enugu State Attorney General’s fiat to prosecute the case before him. I noticed that the learned trial judge did not say anything with respect to the propriety or otherwise of the aforementioned Practice Directions, 2009. Hence, I refrain from expressing any opinion on it since the court has no business in considering an issue not properly laid before it. FRN V. Mohammed (2014) 19 WRN 1 at 45; ADH Ltd v. Amalgamated Trustees Ltd (2007) ALL FWLR (pt. 392) 1781 at 1807; Ojoh V. Kamatu (2006) ALL FWLR (pt.297) 978; (2005) 12 SCNJ 236.
Suffice it to only say that this judgment seemed to have exposed the weakness of that Practice Directions. I say no more!

I resolve the issue in this appeal against the appellant. The appeal is straw and lacking in merits, hence it is dismissed. The ruling of R. O. Odugu, J., of 20th November, 2012, is hereby affirmed. The appellant shall take her trial at the court below, accordingly.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the Judgment just delivered by my Learned Brother, TOM SHAIBU YAKUBU JCA. With due respect to my very erudite Learned Brother, I am unable to agree with the reasoning and conclusions therein.

On the 11th of June, 2012, after counsel to both sides announced their appearance, the trial court asked the Learned Counsel for the Prosecution: “Mr. Ikeyi, where is the fiat of the Attorney General of Enugu State giving you authority to prosecute this case?”
Mr. Ikeyi informed the trial court that there are a plethora of Supreme Court and Court of Appeal decisions stating that the court must presume that Counsel has such authority and cannot inquire into the existence of such authority. He then applied to be allowed to file a comprehensive argument on the issue for the benefit of legal knowledge. Learned counsel for the accused replied that he has an Enugu State High Court decision and a Supreme Court decision and that if served with the address of learned counsel for the Prosecution, he will reply. The trial court then ordered both parties to file written addresses. Both sides did and adopted the respective written addresses.

On the 20th November, 2012, the trial court delivered its ruling, holding that “Learned Counsel for the Prosecution can prosecute the criminal charge without tendering the Attorney General’s fiat in accordance with the decisions of the Court of Appeal and Supreme Court” and adjourned the case for hearing.

In the introductory part of its said ruling, the trial court stated that – “the general ground for the intended objection and the consequent attitude of the court is rooted in the application of the Practice Directions issued by the Hon. Chief Judge of Enugu State and the conventional requirement that every private legal practitioner who is briefed by the Attorney General of Enugu State to prosecute any criminal case for the State must tender his written authority from the said Attorney General to so prosecute the case. The Practice Direction stipulates that no Magistrate or High Court in Enugu State shall give audience to such private legal practitioner if he falls to tender the written authority to the said Attorney General to prosecute the criminal case. It further states that any private prosecution contrary to or in travesty of these Practice Directions shall be null and void”.

Thereafter the trial court briefly recapped the arguments of both sides. The decision of the trial court is in one paragraph thus:
“I have seen that authorities on the issue are legion. But the divergent opinions and reasonings of my learned brothers at the level of the High Court leaves one with the opinion of following the path of sound argument until the issue is finally resolved by the superior court. For now I am persuaded to follow and concur with R. N. Onuorah J and A. A. Nwobodo J and reach the same conclusion that learned counsel for the prosecution can prosecute the criminal charge without tendering the Attorney General’s fiat in accordance with the decisions of the Court of Appeal and the Supreme Court on this point of law.
Accordingly I resolve the issue in favour of the prosecution. Learned counsel for the prosecution is at liberty to proceed with the prosecution of this case in this court forthwith”.

Even though the written addresses of both counsel extensively dwelt on the applicability of the said 2009 Practice Directions, the trial court did not refer to or consider the Directions in its decision. The parties to this appeal have again extensively addressed on the Practice Directions in their respective briefs of argument.

As the trial court stated in its ruling, its attitude in asking Learned counsel for the prosecution if he has the Enugu State Attorney General’s fiat to prosecute the criminal case before it, was based on the said Practice Directions. Learned Counsel for the Appellant has in substance argued in the Appellant’s brief of argument that by virtue of Section 66 (1) (a) (iii) of the High Court Law Cap IV 2004 Revised Edition of Enugu State Laws and the said Practice Directions, a private legal practitioner prosecuting any criminal case on behalf of the State , must obtain the fiat of the Attorney General authorising him to prosecute that case before he can prosecute the case and must tender such authority in court before he can take any step in the proceedings.

The Respondent’s brief of argument raised the following issue for determination: “whether a private legal practitioner briefed by the Attorney General to prosecute a criminal matter on behalf of the State, must tender a written authority of the Attorney General to so prosecute the matter in court, before he can be given audience by the court as provided in the Practice Directions issued by the Chief Judge of Enugu State”.

Under this sole issue, he relied on the Supreme Court decisions in Adekanya v. FRN (2005) All FWLR (Pt. 252) 514 at 579; FRN v. Adewumi (2007) All FWLR (Pt. 368) 978 at 987; and Tukur v. Government of Gongola State (1988) 1 SCNJ 54 at 56, 62 and 63, and argued that a private legal practitioner briefed by the Attorney General to appear for the State in any civil or criminal matter is not required under any law to tender in evidence any proof of his being so instructed by the Attorney General, and that neither court nor counsel has the requisite locus standi to question the authority of any counsel who announces appearance for the State by asking for the proof of his authority to so appear for the State.

The Learned counsel further submitted that the Chief Judge of Enugu State in an attempt to question, control, and/or mount pressure on the exercise of the discretionary powers of the Attorney General of Enugu State vested in him by Section 211 of the 1999 Constitution issued a document titled “Private Legal Practitioners Prosecution of Criminal Cases and Practice Directions 2009”. He then submitted that on the strength of the above judicial decisions the courts and the Chief Judge of Enugu State, while sitting as a Judge, cannot delimit the Constitutional Powers of the Attorney General under Section 211 of the 1999 Constitution that he must brief private legal practitioners in writing to represent the State in criminal prosecutions before Magistrates and judges in Enugu State and that the said Practice Directions is a flagrant violation and an affront to the inviolate rights and powers of the Attorney General preserved in common law and under Section 211 of the Constitution.
Learned counsel submitted that the Practice Directions is an administrative prescription.

Learned Counsel also submitted that the only law in Enugu State that provides for the procedure in criminal cases in the High Court and Magistrates Court is the Criminal Procedure Law Cap 31 of the 2004 Revised Edition of the Laws of Enugu State and there is nothing therein or in any other statute requiring the Attorney General to brief a private legal practitioner in writing, or that a private legal practitioner prosecuting a criminal case on behalf of the Attorney General must tender to the court a written authority from the Attorney General that he should prosecute that case.

According to Learned counsel, the said Practice Direction cannot stand as it is not founded on any existing rules of procedure which it expatiates. He referred to the decision of the Supreme Court in University of Lagos v. Agoro (1974) 11 SC 152 at 159, to support this submission.
Another submission of Learned Counsel for the Respondent is that the said Practice Directions violate the Attorney General’s right to fair hearing by infringing on his right to engage a legal practitioner of his choice and that it treats the parties to the criminal case unequally by requiring only the private legal practitioner for the prosecution to produce his written authority to so prosecute and not imposing the same requirement on the private legal practitioner for the accused. Learned Counsel also submitted that the Chief Judge of Enugu State lacks the requisite statutory authority to issue such Practice Directions and that the learned counsel for the Prosecution is not a private prosecutor but a legal practitioner briefed by the Attorney General to prosecute the case on behalf of the State.

Both parties herein by the issues for determination they have respectively raised, and by their extensive arguments on the application of the said Practice Directions, have invited this court to pronounce on the application of the Practice Direction in determining whether the trial court was right in its decision that the Learned counsel for the prosecution is not required to tender in court the Attorney General’s written authorization that he should prosecute that case.

As I had earlier pointed out herein, the issue of the application of the Practice Directions arose at the trial proceedings and constituted the basis upon which the question of whether the Learned Counsel for the prosecution must produce the Attorney General’s fiat to prosecute was raised. Against this background and considering that it is the centre piece of most of the arguments in this appeal, it cannot be ignored in the determination of this appeal and there cannot be a proper determination of this appeal without any decision or pronouncement on it. It is trite law that a court must consider all the issues that arise or are raised in the case before it. In Bayol V. Ahemba (1999) 7 SC (Pt. 1) 92, the Supreme Court held that “it has been said time without number that the judgment of a court must demonstrate in full a dispassionate consideration of the issues raised and canvassed before it. This duty on the court is imperative otherwise it would be extremely difficult for a party whose case has not been accorded adequate and full consideration to accept that Justice has been done to him. Failure to deal with issues raised on appeal may tantamount that the lower court reached its decision without the advantage of the Judgment of the trial court. Failure to discharge the issue of determining issues properly raised and heard by the Court of Appeal is a lapse that could, in some circumstance, vitiate the Judgment of the court below. See Okonji v. Njokanma (1991) 7 NWLR (pt. 202) 131″. See also Onochie v. Ochegwu (2006) 6 NWLR (Pt. 975) 65.

So I will now consider whether the decision of the trial court that learned counsel for the prosecution is not required to tender in court the Attorney General’s fiat or authorisation to prosecute on behalf of the State is correct having regard to the provisions of the said Practice Direction.
I will start the consideration of this issue by reproducing the entire long title and of the Practice Directions for ease of reference. It states thus-
PRIVATE LEGAL PRACTITIONER’S PROSECUTION OF CRIMINAL CASES AND PRACTICE DIRECTIONS 2009
In the exercise of the powers conferred on me under the Constitution of the Federal Republic of Nigeria, 1999 and by virtue of all other laws and powers enabling me in that behalf, I, INNOCENT AZUBUIKE UMUEZULIKE, OFR, FCIArb., CHIEF JUDGE OF ENUGU STATE, do hereby issue the following Practice Directions.
These PRACTICE DIRECTIONS shall apply in the High Court and Magistrate Court throughout Enugu State of Nigeria.
1. A private legal practitioner who intends to prosecute a criminal case in the High Court or Magistrate Court in Enugu State shall apply for and obtain the authority or fiat of the Attorney General of Enugu State prior to the commencement of the private prosecution.
2. The Attorney General’s AUTHORITY or FIAT to prosecute shall be tendered by the private prosecutor and received by the court, before the private prosecutor shall take any step in the private prosecution of the criminal case.
3. No court to which these PRACTICE DIRECTIONS apply shall give audience to or entertain the appearance of any private legal practitioner in the prosecution of any criminal case who has not tendered the said ATTORNEY GENERAL’S AUTHORITY or FIAT to prosecute the criminal case.
4. Any private prosecution contrary to or in travesty of these PRACTICE DIRECTIONS shall be null and void.
COMMENCEMENT: 24th day of August, 2009.
THESE PRACTICE DIRECTIONS may be cited as PRIVATE LEGAL PRACTITIONER’S PROSECUTION OF CRIMINAL CASES AND COURT PRACTICE DIRECTION 2009.”

The wordings of this Practice Direction are so clear that they do not need to be restated or explained. I will go straight to considering the respective arguments of counsel concerning its application.
The said Practice Direction was made by the Chief Judge of Enugu State in exercise of the power vested on him by Section 274 of the 1999 Constitution and Section 68 (2) of the Enugu State High Court Law Cap 92 Vol. IV 2004 Revision of Laws of Enugu State to make rules for regulating the practice and procedure of the High Court.

Section 274 of the Constitution provides that “Subject to the provisions of any law made by the House of Assembly of a State, the Chief Judge of the State may make rules for regulating the practice and procedure of the High Court of the State”. Section 68(2) of the Enugu State High Court Law states that “the Chief Judge may make rules of court regulating the practice and procedure of the High Court.”
The power to make practice directions regulating the practice and procedure of a court in a particular matter is inherent in and part of the expressly given power to make rules regulating the practice and procedure of court. The Supreme Court has held in a long line of cases that the power to make practice directions derive from the constitutionally or statutorily prescribed power to make rules regulating the procedure of a Court. see Buhari v. INEC & Ors. (2008) 3 FWLR 4657; Abubakar v. Yaradua (2008) 1 SC (Pt. 11) 77; and Okereke v. Yaradua (2008) 4-5 SC (Pt. 1) 206.
In Buhari v. INEC (Supra) it was contended by the Learned SAN for the Appellant that Section 248 of the 1999 Constitution does not vest any power on the President of the Court of Appeal to make any rules or practice direction in respect of Presidential Petition Proceedings in which the court exercises original jurisdiction. The Learned SAN for the Respondent contended to the contrary that by virtue of Section 248 of the 1999 Constitution, the president of the Court of Appeal has the power to make the Practice Direction. The Supreme Court held that Section 248 of the Constitution enables the President of the Court of Appeal to make Practice Directions. It is noteworthy that the Supreme Court also held that the President’s power to make said Directions is also enabled by the 2006 Court of Appeal which expressly prescribes the power of the President of the Court of Appeal to make such Directions. For our present purpose, what is of interest is that the Supreme Court held that Section 248 of the 1999 Constitution is a source of the power of the President of the Court of Appeal to make Practice Directions.
The wordings prescribing the power to make rules of practice and procedure are the same in Section 248 and Section 274 of the Constitution. Therefore the decision of the Supreme Court in Buhari v. INEC will apply in the determination of the question whether Section 274 of the 1999 Constitution enables the Chief Judge of a State to make Practice Directions regulating the procedure to be followed in certain matters. In Ezenwosu v. Ngonadi (1992) 3 SCNJ 59, the Supreme Court held that the President of the Court of Appeal can make practice directions by virtue of the provisions of Section 227 of the 1979 Constitution which gives him the power to make rules regulating the practice and procedure of the Court of Appeal. It is noteworthy that Section 227 of the 1979 constitution is the same with Section 248 and 274 of the 1999 Constitution in the wordings prescribing the power to make rules of procedure. In the light of the foregoing, I hold that the Chief Judge of Enugu State had the constitutional and statutory power to issue the said 2009 Practice Directions.

I will now consider whether such Practice Directions are mere administrative directives or law.
There is a long line of Supreme Court decisions on this issue.
Most of them hold that Practice Directions constitute law. In Buhari v. INEC (supra), the Supreme Court restated the nature and status of Practice Directions thus – “Practice Direction, as the name implies, direct the practice of the court in a particular area of procedure of the court. A Practice Direction could be described as a written explanation of how to proceed in a particular area of law in a particular court. The word “Practice” is the form, manner and order of conducting and carrying on suits or prosecutions in the courts, through their various stages according to the principles of law and the rules laid down by the respective courts. Practice is our adjectival law, that is, the law regulating procedure for example the law of pleading procedure, evidence etc. They are rules of civil conduct which declares the rights and duties of all who are subject to the law and who come before the court to seek redress. The dictionary meaning of the word “direct” in our con is an order conveying instruction by a person in authority or backed by an authority; the refusal to carry it out is on the pain of sanction or punishment. In law, “direction” in our con, means command or precept emanating from an authority, who in the 2007 Practice Directions, is the president of the Court of Appeal what is the legal status of Practice Directions? Practice Directions have the force of law in the same way as rules of court. I held in Abubakar v. Yar’Adua (2008) 1 SC (Pt. 11) 77; (2008) 4 NWLR (Pt. 1078) 455 at 511, that rules of court include Practice Directions. See also Owuru v. Awuse (2004) All FWLR (Pt. 211) 1429. Practice Directions will however not have the force of law if they are in conflict with the constitution or the statute which enables them”.
Practice Directions were treated as rules of court by the Supreme Court in Nwankwo & Ors. V. Yaradua & Ors. (2010) 12 NWLR (Pt.1209) 518 (SC); Long-John & Ors. v. Blakk & Ors. (1998) 5 SC 83; Duke v. Akpabuyo L.G. (2005) 19 NWLR (Pt. 959) 130 at 142-143, Afribank (Nig.) PLC v. Akwara (2006) 5 NWLR (Pt. 974) 619; and Omeregie v. Emoron (1982) 6 SC.
This court in Nkeruika v. Joseph & Ors. (2008) LPELR 4625 (CA) held that “the provisions of the Practice Direction are as valid and effective as the express provisions of the Electoral Act 2006 and they also form the rule of procedure as they are made by the President of the Court of Appeal under Section 248 of the Constitution of the Federal Republic of Nigeria 1999”.

The Supreme Court in Okereke v. Yaradua & Ors. (2008) 34 NSCQR (Pt. 11) 1369, while treating Practice Directions as also regulating the procedure of court, stated its position in the hierarchy of norms thus “Practice Directions do not strictly speaking qualify as statutes or enactments. They do not even stand on equal footing with Rules of Court. They are ancillary to and therefore subordinate to Rules of court.
Consequently, in the event of a conflict between a rule of court and a practice direction, the rule must prevail”. In spite of this statement, the apex court still held that compliance with the relevant Practice Direction is a mandatory condition precedent to the exercise of jurisdiction in the following words “Now although the stipulation under sub paragraph (a) of paragraph 3 of the Practice Direction, appears to me to be harsh on the petitioner by making an order for dismissal of the petition which forecloses any chance for him to re-present the petition, it still had to be complied with by the tribunal or court as such steps are a condition precedent to the hearing of any matter in relation to the petition pending before the tribunal or court. Noncompliance thereof will strip off the tribunal or court of jurisdiction as one of the factors which confer jurisdiction on a court of law is not complied with”.

In NPA v. Okoro (1995) 6 NWLR (Pt. 403) 510, the Supreme Court held that “Practice Directions” have been defined by Osborn’s Concise Law Dictionary, 7th Edition, to mean statements by the Judiciary, usually noted in the law reports, intended to guide the court’s and the legal profession on matters of practice and procedure.
Though, practice directions do not have statutory authority which statutory rules have, they represent the view of Judges of the court issuing them on particular matters of practice and procedure. See paragraph 909 of Halsbury’s Laws of England, 4th Edition, Volume 10.
Hence parties and counsel cannot afford to ignore Practice Directions and if they do so, it will be at their peril”. The apex court in that case held that the Court of Appeal was right in refusing to grant an application for, amongst other reasons, non-compliance with the Practice Direction of 26-1-1982 issued by the Chief Judge of Nigeria with respect to practice and procedure in the Supreme Court.
To the be same apex court in University of Lagos V. Aigoro (1984) 11 SC 152 at 159 had in 1984 held that -“a direction given by the appropriate authority stating the way and manner a particular rule of court should be compiled with, observed or obeyed. It concerns and regulates the way and manner a particular rule of court shall be complied with or adhered to. A Practice Directions expatiates in more details the operation of a given rule in the Rules of court. In this explanatory role, it may be consulted for a fuller understanding of the rule. A Practice Direction is however, not an enactment which a Rule of court is, it has no force of law and cannot fetter a Rule of court”. It is noteworthy that all the Supreme Court decisions after this one of 1984 have held that Practice Directions constitute law and treated them as rules of court requiring mandatory compliance.
In light of the foregoing Supreme Court decisions after 1984, particularly Buhari v. INEC, I hold that practice directions, even though subordinate to the constitution, statutes and the principal rules of court, have the force of law in the same way as rules of court. It is specie of subsidiary legislation just as the principal rules of court.

Section 14 of the High Court Law Cap 92 of the 2004 Enugu State Laws provides that “the jurisdiction vested in the court shall be exercised as regards practice and procedure in the manner provided by this Law or any other written law or by such rules and orders of court as may be made pursuant to this Law or any other written law.” By virtue of this provision, the High Court Law, the Criminal Procedure Law and any other law or rules can provide for the practice and procedure of the High Court in criminal trials.

The Criminal Procedure Law Cap 31 2004 Revised Laws of Enugu State is the principal source of the law on the practice and procedure of the High Court in criminal trial. But there is nothing therein making it the exclusive source of law on the practice and procedure of the High Court in criminal trials. It merely states in its Section 3 providing for the application of the Law that “the general provisions of this law shall apply to all criminal trials and other criminal proceedings in the High Court and Magistrate’s Courts except when express provision is made in this Law or any Law in respect of any particular court or form of trial”. Furthermore, Section 274 of the 1999 Constitution and Section 68 (2) of the High Court Law that gave the Chief Judge the power to make rules regulating the practice and procedure of the High Court did not restrict the exercise of that power to any particular type of proceedings and did not exclude the exercise of that power in respect of criminal trials in the High Court. In the light of the foregoing, I hold that the submission of learned counsel of the appellant that the Criminal Procedure Law Cap 31 is the only law in Enugu State regulating the procedure of courts in criminal cases is not correct.

S. 66 (1) (a) (III) of the High Court law Cap 92 provides for representation of the State in a criminal case prosecuted by it or on its behalf. It states that “in the case of prosecution by or on behalf of the State, the State may be represented by a legal practitioner duly authorised in that behalf by the Attorney General.
It is clear from the tenor of The Private Legal Practitioners Prosecution of Criminal Cases & Practice Directions 2009 that it seeks to provide details on how the provisions of S.66 (1) (a) (III) can be operated and enforced. There is nothing in S. 66 (1) (a) (III) of the High Court Law and the Practice Directions preventing the exercise by the Attorney General of his power under S. 211 (2) of the 1999 Constitution and S. 224 of the Criminal Procedure Law of Enugu State to engage a private legal practitioner to represent the State in criminal proceedings in the High Court.
The requirement that the Attorney General must authorize a legal practitioner to prosecute a criminal case before the latter can be competent to do so is inherent in the notion that the Attorney General can delegate his power of criminal prosecution of a case on behalf of the state to a legal practitioner. This is so because such legal practitioner, unless so delegated lacks the power to so prosecute.
S. 66 (1) (a) (III) of the High Court Law rather protects the said power of the Attorney General to prosecute criminal cases on behalf of the State through legal practitioners other than a law officer, by ensuring that a legal practitioner appearing in the High Court in criminal Proceedings as representing the State is actually a legal practitioner through whom the Attorney General has decided to prosecute that case. S. 66 (1) (a) (III) does not in any way limit the powers vested by S.211 of the 1999 Constitution on the Attorney General. The Practice Directions which facilitates the operation and enforcement of S.66 (1) (a) (III) of the High Court and therefore the exercise by the Attorney General of his powers of criminal prosecution on behalf of the State, does not in any way delimit the constitutional powers of the Attorney General under the 1999 Constitution. It is illogical to suggest that a law or rule that seeks to protect the constitutional powers of the Attorney General to prosecute criminal cases on behalf of the State against being usurped and abused behind the back of the Attorney General without his knowledge and to prevent the abuse or vexatious use of the criminal process in the High Court against an accused person, limits, affronts and frustrates the said power of the Attorney General. It is clear from the tenor of S. 66 (1)(a) (III) of the High Court Law and the Practice Direction that the main object of the said law and Practice Direction is to prevent the abuse of the criminal process in the High Court.

A Law or Practice Direction that seeks to regulate its procedure in criminal trials before the High Court to prevent the abuse of its process cannot rightly be described as the usurpation of the executive powers of the Attorney General, a functionary of the executive branch of Government. It is not part of the Executive function of Government to decide how proceedings are conducted before a court. It is not part of the constitutional or statutory powers of the Attorney General to decide how a legal practitioner who appears on behalf of a State before a High Court in a criminal trial conducts the case before the High Court in a criminal trial. It is within the province of the judicial powers of the judicature to regulate the procedure of courts in cases including how a legal practitioner representing the state in a criminal case appears before a court and conducts a case before it. So, the argument of Learned counsel for the appellant that the 2009 Practice Directions issued by the Chief Judge of Enugu State is a violation of the principle of separation of powers as it usurps and infracts the powers of the Attorney General, is clearly not correct and not valid.

The proposition that the said Practice Direction violates the Attorney General’s right to fair hearing in that it prevents him from engaging or picking a counsel of his choice is not correct.
There is nothing in the Practice Direction restricting the discretion of the Attorney General to pick a legal practitioner of his choice to prosecute the case on behalf of the State. That is his absolute discretion and Ss. 66 (1) (a) (III) and the Practice Direction have not fettered or restricted that discretion in any way.
There is nothing in S.66 (1) (a) (III) and the 2009 Practice Direction requiring that a legal practitioner must tender the conditions of his engagement by the Attorney General. They merely require that the legal practitioner should be authorised by the Attorney General to so prosecute before he can do so and must produce the authorisation to the court. There is nothing in these provisions of the said Law and Practice Direction requiring the legal practitioner to disclose any information received from the Attorney General. An attorney General’s authorisation to prosecute on behalf of the State cannot be described as an information or communication that is privileged and cannot be disclosed to the court.

With respect to the argument that the Practice Direction is wrong and cannot stand in the light of the plethora of Supreme Court and Court of Appeal decisions that a court or opposing counsel cannot demand from prosecuting private legal practitioner such fiat and that such prosecuting counsel is not bound to produce such fiat before he can prosecute, I hold that the said Supreme Court decisions which include Adekanya v. FRN (Supra), Governor of Gongola State (Supra) and the Court of Appeal decision in Salim v. Ifenkwe (1996) 5 NWLR (Pt. 450) 564 at 570 to 574 are not applicable to this case because those cases did not involve the application of any rules similar to the 2009 Practice Directions in issue in this case. Those cases were decided on the basis of the general principle of law that a court cannot question the authority of counsel to represent his client. The courts in those cases did not consider the provisions of any statute or rules imposing a duty on the trial court to demand such Attorney General’s fiat, or imposing a duty on the private legal practitioner prosecuting the criminal case on behalf of the state to produce the Attorney General’s written authorization to do so. Therefore the courts in those cases did not apply such Provisions of any rule of court or practice direction in reaching those decisions. These distinguishes them from this case and so they cannot be binding precedent in this case.

It is obvious that the general principle that the court cannot question the authority of a private legal practitioner to represent his client in a case in court and that such counsel is under no duty to produce such authority in court is clearly in conflict with the 2009 Practice Directions. So decisions based on such general principle cannot be precedent in subsequent cases as this one, where a rule of court imposes a duty on the court to demand the Attorney General’s authorization to represent the State in a criminal case by or on behalf of the State and imposes a duty on the private practitioner to produce it in court. It is trite law that general principles of law cannot override the provisions of statutes and subsidiary legislations like rules of court and Practice Directions. Where general principles of law conflict with statute or any subsidiary legislation, the statute or subsidiary legislation prevails. See the unreported decision of this court in Ugwu & Ors v PDP delivered on 8-3-2013 in CA/E/259/2012.
So the Practice Direction 2009 which imposes a duty on the court to demand the Attorney General’s authorization of counsel to represent the state in a criminal case by or on behalf of the state and imposes a duty on the legal practitioner to produce it in court overrides the general principle of law that the authority of counsel to represent his client in court cannot be questioned by the court or the opposing counsel and that counsel has no duty to produce such authorisation in court.

In the light of the foregoing, I hold that by virtue of the Private Legal Practitioner’s Prosecution of Criminal Cases and Practice Directions 2009, learned counsel for the respondent was bound to produce the Attorney General’s authorization to prosecute the criminal case on behalf of the state and tender same in evidence.
Learned counsel for the respondent must comply with the said Practice Directions when he represented the State in the criminal case in the trial court.

On the whole this appeal succeeds as it has merit. Accordingly, the appeal is allowed. The ruling of High Court of Enugu State in criminal case No. E/33c/2009 on 20/11/2012 is hereby set aside. It is hereby ordered that the legal practitioner representing the State in the said case No. E/33C/2009 in the High Court of Enugu State produce and tender in evidence the Enugu State Attorney General’s authorization that the said legal practitioner prosecutes the said case on behalf of the State.

SAIDU TANKO HUSAINI, J.C.A.: I have had the advantage of reading the draft copy of the well articulated Judgment just delivered by my Learned brother TOM SHAIBU YAKUBU, JCA., my Lord in his usual scholarly fashion has addressed all the salient issues with which I agree completely. I also abide by other consequential orders made.

Appearances

W.O. Abonyi. Esq.For Appellant

AND

J.O.N. Ikeyi Esq.For Respondent