MRS. MOPELOLA SAIDU v. THE STATE & ORS
(2014)LCN/7004(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of March, 2014
CA/PH/7CR/2013
JUSTICES
EJEMBI EKO Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
Between
MRS. MOPELOLA SAIDU Appellant(s)
AND
1. THE STATE
2. MR. LACHMAN PUNJABI
3. MRS. OBY INUWA
4. MR. ISONG UDOM Respondent(s)
RATIO
WHETHER OR NOT SIGNING AND FILING OF THE INFORMATION OR CHARGE BY A PRIVATE LEGAL PRACTITIONER ON BEHALF OF THE ATTORNEY-GENERAL IS IN ORDER
The 1st Respondent has submitted, correctly, on the authority of FEDERAL REPUBLIC OF NIGERIA v. ADEWUNMI (2007) 4 SC (Pt. iii) 30 at page 50 – 51 that the Attorney-General, in exercise of his prosecutoral powers under Section 211 of the 1999 Constitution (in pari materia with Section 191 of the 1979 Constitution), can brief a private legal practitioner to represent him in the prosecution of any person accused of committing a criminal offence, either alone or together with a member of the Attorney-General’s staff. It is worthy of note that the Appellant filed no reply brief and joined issues with the 1st Respondent on this. The facts of FRN v. ADEWUNMI (supra), also reported as (2007) 10 NWLR (Pt. 1042) 399, are on all fours with the facts of the instant case. In each of the two cases the incumbent Attorney-General appointed the respective private legal practitioner to represent him in the prosecution of a criminal case. The Supreme Court in FRN v. ADEWUNMI (supra) held that the signing and filing of the information or charge before the appropriate court by a private legal practitioner on behalf of, and on the authority of, the Attorney-General was perfectly in order. Ogbuagu, JSC, in his contribution, listed several other cases where this had been done and it was validated by the courts. The cases include ADIO v. THE STATE (1986) 3 NWLR (Pt. 24) 581 (1986) 4 SC 194 at 212 – 213; IBRAHIM & ANOR v. THE STATE (1988) 2 SC 91 at 93; ENORELIKWU v. THE STATE (1970) 1 ALL NLR 55; THE STATE v. GWONTO & ORS (1983) 3 SC 62 at 84 (1983) 1 SCNLR 142; THE STATE v. ILORI (1983) 1 SCNLR 94 at 110. PER EKO, J.C.A.
EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): The appellant is one of the four (4) persons arraigned at the Chief Magistrate’s Court Port Harcourt, on charge no. PMC/443C/2004. The Attorney General of Rivers State (then one K. A. Chikere, Esq.) had felt at some point that it was better the trial of these four (4) persons be conducted in the High Court of Justice of Rivers State and that a private legal practitioner, P. O. Ukposi, Esq., should represent him in the prosecution of the said four (4) persons at the High court. The Attorney General on 18th May, 2010 under his own hand issued fiat no. MJ/DPP/236/S.10/vol.XIV/275 under the title: CHARGE NO.: PMC/443c/12004 – THE STATE v. LACHMAN PUNJABI & 3 ORS; AUTHORITY TO PROSECUTE. The fiat copied at page 128 of the Record states:
“By virtue of the powers conferred on me by Section 77 (1) (a) (iii) of the High Court’s Law (Cap. 62, Laws of Rivers State of Nigeria, 1999) and of all powers enabling me in that behalf, I, K.A. CHIKERE; ESQ. HONOURABLE ATTORNEY-GENERAL of Rivers State of Nigeria hereby authorize P. O. UKPOSI, ESQ., Legal Practitioner of No. 27 ABA ROAD, PORT HARCOURT, to represent the prosecution by preferring information on the above mentioned charge before the High Court of Justice of Rivers State, Port Harcourt.
For the avoidance of doubt, it is hereby declared that the said P. O. UKPOSI, ESQ. is further authorized to add to or alter the charge in the aforesaid criminal proceedings as the High Court may permit.
DATED AT PORT HARCOURT THIS 18TH DAY OF MAY, 2010.
(SIGD)
K. A. CHIKERE, ESQ.,
HONOURABLE ATTORNEY-GENERAL & COMMISSIONER FOR JUSTICE, RIVERS STATE.
On the authority of the said fiat P. O. Ukposi Esq., describing himself as “private prosecutor”,signed an information sheet containing a four count charge of various offences against the appellant and 3 others. In signing the information P. O. Ukposi, Esq. loudly stated thereunder that he was doing so:
FOR: Honourable Attorney-General of Rivers State Ministry of Justice, Port Harcourt.
This fact, that P. O. Ukposi signed and filed the information for the Attorney-General, is not in dispute. The information together with the proofs of evidence were filed by the said P. O. Ukposi Esq. on 6th August, 2010 at the High Court of Rivers State, holden at Port Harcourt. It carried charge no PHC/1874CR/2010.
Upon being served the information and the proof of Evidence, the 3rd and 4th accused persons, through B.E.I. Nwofor, SAN, filed notice of preliminary objection on 19th December, 2010 alleging “that this court has no jurisdiction to entertain this case”. The 3rd Accused/objector is the present Appellant. The grounds for the objection are as follows:
1. By virtue of Section 341 (1) of the Criminal Procedure Law, Cap. 38, volume 2, Laws of Rivers State of Nigeria, 1999, all informations shall be signed by a law officer on behalf of the state. This mandatory statutory requirement and provision was violated in the instant case in which the purported information was signed by P. O. UKPOSI, ESQ. who is not a law officer.
2. The purported information was not filed by the Honourable Attorney-General of Rivers State or by a law officer in his Department or on his behalf.
3. The purported information is vitiated by the inherent contradiction depicted by the fundamental defect exemplified by the allegation that P. O. UKPOSI was given fiat to prosecute on behalf of the Attorney General of Rivers State (which implies that the prosecution is being undertaken on behalf of the Attorney-General) and by the fact of P.O. UKPOSI signing the information as “private prosecutor”. One information cannot validly be filed in the dual capacities of “on behalf of the Attorney-General with his fiat” and “as a private prosecutor”. Both are mutually exclusive and unknown to law.
4. The purported information does not satisfy the mandatory statutory requirements of information by a private person as laid down in Section 342 (a) and (b) of the said Criminal Procedure law in that
(a) It does not have endorsed thereon a certificate by a law officer to the effect that he has seen such information and declines to prosecute at the public instance the offence therein set forth; and
(b) P. O. UKPOSI has not entered into any recognizance in the sum of one hundred Naira together with one surety approved by the registrar in the like sum, to prosecute the said information to conclusion at the trial at which the accused shall be required to appeaL and to pay such costs as may be ordered by the court, or, in lieu of entering into such recognizance shall have deposited one thousand Naira in court to abide the same condition.
5. None of these essential statutory requirements stipulated by Section 341 and 342 of the Criminal Procedure Law (supra) was complied with as regards the filing of the purported information in the instant case.
6. The purported information is neither one filed on behalf of the State nor information by a private person.
7. It is well settled law that a court is competent, inter alia, (1) when there is no feature in the case which prevents the court from exercising its jurisdiction, and (2) the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See GABRIEL MADUKOLU & ORS v. JOHNSON NKEMDILIM (1962) 2 SCNLR 341 on page 348.
8. The instant criminal case was not initiated by due process of law and upon fulfillment of the conditions precedent to the exercise of jurisdiction having regard to violations of the mandatory statutory provisions of Sections 341 and 342 of the Criminal procedure Law (supra) pointed out above.
The preliminary objection was argued on 29th June, 2012 and the Ruling on it was delivered on 5th February, 2013. The preliminary objection was overruled; hence this appeal, the notice of which was filed on 18th February, 2013. The Notice of Appeal at pages 137 – 144 of the Record has 7 grounds of appeal.
In the Appellant’s Brief, filed on 23rd March, 2013, three issues for the determination of the appeal, distilled from the 7 grounds of appeal, were identified and argued. The 3 issues are as follows: –
1. Whether the instant criminal case was initiated by due process of law and upon fulfillment of the conditions precedent to the exercise of jurisdiction?
2. Whether the learned trial Judge is right in failing to hold that the fiat No MJ/DPP/236/S.10/VOL.XIV/275 dated 18/5/20/0 issued to P. O. UKPOSI, ESQ. by the Honourable Attorney-General of Rivers State, is unconstitutional, invalid, null and void?
3. Whether the learned trial Judge is right in failing to hold that no fiat of the Honourable Attorney of Rivers State was issued to P. O. UKPOSI, ESQ., to prosecute charge no. PHC/1874C/2010 in the Rivers State High Court?
At the heart of the contention whether the instant criminal case was initiated by due process of law and upon fulfillment of the conditions precedent to the exercise by the court of jurisdiction is the statement of the Appellant that the information filed on 6th August, 2010 was neither information filed by, or on behalf of, the State nor an information filed by a private person. The misconception about the information filed by P. O. Ukposi, Esq. on 6th August, 2010 is that, as fastidiously believed albeit erroneously by the learned senior counsel for the Appellant, it was not an information filed by, or on behalf of, the State. At pages 2 and 3 of the Record, it is very clear that P. O. Ukposi, Esq., describing himself as “private prosecutor” signed the information “FOR Honourable Attorney-General of Rivers State, Ministry of Justice, Port Harcourt”. It is therefore not correct as suggested by B.E.I. Nwofor, SAN, of counsel for the Appellant that the information was not filed by, or on behalf of, the State. The information was clearly filed by, or on behalf of, the State. Arcane technicality, and not the truth, seems to have beclouded and blurred the vision of the senior counsel here. The fiat at page 128 of the Record appointed P. O. Ukposi, Esq. “to represent the prosecution by preferring information on the above mentioned charge before the High Court of Rivers State, Port Harcourt. There is nothing on Record suggesting that the Attorney-General of Rivers has renounced or reneged from the disputed fiat. On presumption of regularity, by virtue of Section 150 (now Section 168) of the Evidence Act, the fiat remains subsisting.
Throughout the whole gamut of the Appellant’s Brief there was no suggestion that the Rivers State Attorney General had no powers in law to delegate his powers of prosecution to a private legal practitioner. The 1st Respondent has submitted, correctly, on the authority of FEDERAL REPUBLIC OF NIGERIA v. ADEWUNMI (2007) 4 SC (Pt. iii) 30 at page 50 – 51 that the Attorney-General, in exercise of his prosecutoral powers under Section 211 of the 1999 Constitution (in pari materia with Section 191 of the 1979 Constitution), can brief a private legal practitioner to represent him in the prosecution of any person accused of committing a criminal offence, either alone or together with a member of the Attorney-General’s staff. It is worthy of note that the Appellant filed no reply brief and joined issues with the 1st Respondent on this.
The facts of FRN v. ADEWUNMI (supra), also reported as (2007) 10 NWLR (Pt. 1042) 399, are on all fours with the facts of the instant case. In each of the two cases the incumbent Attorney-General appointed the respective private legal practitioner to represent him in the prosecution of a criminal case. The Supreme Court in FRN v. ADEWUNMI (supra) held that the signing and filing of the information or charge before the appropriate court by a private legal practitioner on behalf of, and on the authority of, the Attorney-General was perfectly in order. Ogbuagu, JSC, in his contribution, listed several other cases where this had been done and it was validated by the courts. The cases include ADIO v. THE STATE (1986) 3 NWLR (Pt. 24) 581 (1986) 4 SC 194 at 212 – 213; IBRAHIM & ANOR v. THE STATE (1988) 2 SC 91 at 93; ENORELIKWU v. THE STATE (1970) 1 ALL NLR 55; THE STATE v. GWONTO & ORS (1983) 3 SC 62 at 84 (1983) 1 SCNLR 142; THE STATE v. ILORI (1983) 1 SCNLR 94 at 110.
I do not, accordingly, see anything constitutionally wrong with the Attorney-General of Rivers state delegating his prosecutoral powers, as he did at page 128 of Record, to P. O. Ukposi, Esq., a private legal practitioner, to institute the prosecution of this case at the High Court. The private legal practitioner, to whom this power has been donated by the Attorney-General, can sign the charge or information initiating the prosecution either alone or jointly with a legal practitioner in the chambers of the Attorney-General. That is what Emeka Nigge, SAN, to whom the power was donated, did in FRN v. ADEWUNMI (supra), and that is the only fact that distinguishes FRN v. ADEWUNMI (supra) from the instant case. That is, in ADEWUNMI case, Emeka Ngige, SAN signed the information jointly with a law officer.
Since this case is not a private prosecution, but a public prosecution at the instance of the Attorney-General, the provisions of Sections 342 and 343 of the Criminal Procedure Law of Rivers State are completely irrelevant. Section 341 of the same Law, on which the Appellant builds his castle, provides:
341. (1) Informations shall, subject to the provisions of subsection (2) and Section 342 of this be signed by a law officer.
(2) Where the Governor shall for reasons of public convenience think fit, an information may be signed by any other public officer or person whom the Governor may designate.
These provisions of Section 341 of the Criminal Procedure law were first enacted into the Criminal Procedure Ordinance in 1959 vide LN 257 of 1959, twenty and forty years respectively before the 1979 and 1999 Constitutions. Since 1959 the provisions of Section 341 CPL had merely been adopted and that is how the provisions transmuted into the Criminal Procedure Act and later the Criminal Procedure Law [CPL] of Rivers State.
Notwithstanding the mastery of technicality by the Appellant’s counsel in the formulation of this appeal, not a single word was uttered on Section 77 (1) (a) (iii) of the High court Law cap 62, Laws of Rivers State, 1999 on which the incumbent Attorney-General founded his authority to issue the fiat. The said provision is as follows;
77. (1) subject to this section, in the case of a prosecution –
(a) by or on behalf of the state; or
(b) by a public officer in his official capacity,
The state or that public officer may be represented by –
(i) A law officer;
(ii) A police officer (who is a legal practitioner); or
(iii) A legal practitioner duly authorised in that behalf by the Attorney-General or in revenue cases authorized by the head of department concerned.
This law enacted in 2001 by the Rivers State House of Assembly is later in time to Section 341 of the CPL. In the gale of crass technicality it was not convenient for the Appellant’s counsel to utter a word on Section 77 (1) of the High Court Law. And he is an officer in the temple of justice. I say no more than to say that Section 77 (1) (a) (iii) of the High Court Law is clearly unambiguous.
The Appellant argues that Section 341 of the CPL is mandatory in its utterance; and that since P. O. Ukposi Esq. who signed the information is neither a law officer in the office of the Attorney-General nor a public officer so designated by the Governor to sign the information; the information is a nullity. Presumably Section 341 of the CPL has now been enacted pursuant to Section 211 of the 1999 Constitution which vests enormous powers over public prosecution on the Attorney-General. That is the same Section 211 of the 1999 Constitution, formerly Section 191 of the 1979 Constitution that the Supreme Court had interpreted in FRN v. ADEWUNMI (supra) and other cases as meaning that, and empowering, the Attorney-General can, or to, delegate his powers of signing and filing of an information or charge before the appropriate court to a private legal practitioner, as P. O. Ukposi, Esq. such delegation has been held to be valid and constitutional in ADIO v. THE STATE (1986) 4 SC 194 at pages 212 – 213 and IBRAHIM v. THE STATE (1988) 2 SC 91 at 93. These two cases were cited with approval in FRN v. ADEWUNMI (supra). These authorities are binding precedents on us, my Lords, and we are enjoined by Section 287 of the 1999 Constitution to enforce and apply them. Having not been persuaded by the Appellant to ignore, at the peril of judicial impertinence, these powerful authorities coming from the Supreme Court, my stance on Section 341 CPL is that; Section 211 of the 1999 Constitution as earlier interpreted by the Supreme Court overrides section 341 of the CPL. Coming as I do to this conclusion, I hereby resolve issue 1 in favour of the 1st Respondent and against the appellant.
The fiat issued to P. O. Ukposi Esq., a private legal practitioner, to represent the said Attorney-General of Rivers State “by preferring information on the above mentioned charge, before the High Court of Justice of Rivers State” empowers the said private legal practitioner to sign and file the information, the Appellant had objected to, for and on behalf of the said Attorney-General. The court below, therefore in my view, was not in error in overruling the preliminary objection on this issue.
The substance of issue 2, as formulated and argued by the Appellant, is that the learned trial Judge was wrong in his failing to hold that the fiat issued to P. O. Ukposi, Esq. to file information and prosecute the Appellant and others thereon was unconstitutional, invalid, null and void. As I pointed out above the Supreme Court has resolved this issue in a number of cases including FRN v. ADEWUNMI (supra), ADIO v. THE STATE (supra); IBRAHIM v. THE STATE (supra) etc. The instant information was filed by P. O. Ukposi, Esq., on the authority of the fiat issued by the Attorney-general as being for and on behalf of the said Attorney-General. It was therefore an act or function deemed to have been done or performed by the said Attorney-General.
Appellant complains that he cited ATTORNEY-GENERAL OF KADUNA STATE v. MALLAM UMARU HASSAN (1985) 2 NWLR (Pt. 8) at the court below for it’s consideration and that the court “was wrong in completely ignoring the very apt and binding decision of the apex court”. The important thing is not that the court below ignored the said decision, but whether the said court arrived at a good decision in law on the issue. In my view the court below was right in law in overruling the preliminary objection. It held that the Attorney-General can lawfully, under the Constitution, brief any private legal practitioner to appear either alone or with staff of his office to represent him in “instituting or undertaking a criminal prosecution within the meaning” of section 211 of the 1999 Constitution. The opinion of Irikefe, JSC at page 503 of A.G., KADUNA STATE v. HASSAN (supra) supports the view that “the powers entrusted to the Attorney-General by the express provisions of (Section 211 of the 1999 Constitution) are his to exercise and his alone to donate”. The main point decided in A.G., KADUNA STATE v. HASSAN (supra) is that “there must be an incumbent in the office to act as donor” before the Attorney-General could be said to have “donated” his powers in the first place. At the time the delegated power was purportedly exercised by an officer in the chambers of Kaduna Attorney-General there was no incumbent in that office. That is not the situation in the instant case.
From the argument and conclusion on issue 2, what I seem to gather is that the court below committed judicial impertinence to have defied the Supreme Court in their decision in A.G., KADUNA STATE v. HASSAN (supra). As no such thing had ever happened in the instant case at the court below, this issue is hereby resolved against the Appellant.
The fiat issued to P. O. Ukposi, Esq. to represent the Attorney-General in preferring information against the Appellant and three others is at page 128 of the Record. On the scope of this fiat, Mr. Nwofor, SAN of counsel for Appellant submits that the fiat does not authorize P. O. Ukposi, Esq. to prosecute charge no PHC/1847c/2010 at the High Court of Rivers State. At the time the fiat was issued the case no PMC/443C/2004 was at the Chief Magistrate’s Court, Port Harcourt.
The Appellant has completely misconceived the scope of the fiat. There is no ambiguity in the language of the fiat. The scope of the fiat, as held by the court below at page 136 of the Record, “covers the appearance of ” P. O. Ukposi, Esq. legal practitioner, in the case “at the High Court as the authority to prosecute originates from the power conferred on the Attorney-General by virtue of Section 211 (1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and therefore not limited or specific in scope”. The court below has a point here.
At the time the fiat was issued the case no PMC/443C/2004 was at the Magistrate’s Court. In the fiat the Attorney-General expressly or categorically authorized P. O. Ukposi to represent the prosecution by preferring fresh information on the case, which then was at the Magistrate’s Court, at the High Court of Rivers State. The donee of that fiat was further authorized “to add to or alter the charge in the aforesaid proceedings as the court may permit”. Without much ado, I have no difficulty in holding that the fiat issued to P. O. Ukposi, Esq., legal practitioner, is for him to file the information in the case no. PMC/443C/2002, pending at the time at the Magistrate’s court, at the High court of Rivers State. The fiat further authorized the said legal practitioner, “to add to or alter the information” as the High Court may permit. Accordingly, I do not agree with the Appellant that the fiat issued to P. O. Ukposi on 18th May, 2010 did not authorize the said legal practitioner to prosecute charge no. PHC/1874C/2010 in the High Court of Rivers State. The fiat did; and it was pursuant to the said fiat that the said P. O. Ukposi, Esq. for and on behalf of the Attorney-General of Rivers State signed and filed information no. PHC/1874C/2010 at the High Court of Rivers State, which information is the subject of the preliminary objection and this appeal. There is nothing in this issue to warrant my allowing the appeal or interfering with the decision of the court below. The issue is hereby resolved against the Appellant.
On the whole, there is no substance in this appeal and it is hereby dismissed in its entirety. The decision of the court below, delivered on 5th February, 2013, is hereby affirmed. The case is hereby remitted to the court below to commence from where it was interrupted by this ill fated interlocutory appeal, contrived not only to delay proceedings but also to defeat the ends of criminal justice.
MODUPE FASANMI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother EJEMBI EKO, J.C.A. just delivered.
I agree with his reasoning and conclusion that the interlocutory appeal lacks merit. The appeal has been filed to delay proceedings and defeat the end of criminal justice. I abide by the consequential orders contained therein.
STEPHEN JONAH ADAH, J.C.A.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother Eko, J.C.A. and I totally agree with his summation and conclusion thereat.
The Attorney of Rivers State under Section 195(I) of the 1999 Constitution as amended, is the Chief Law Officer and Commissioner for Justice of the State. In that position, the Attorney General has the power of prosecution and since that power is statutory and constitutional, he has the capacity to delegate that power of prosecution to any legal practitioner of his choice. It is not in contention in this case that he delegated his power of prosecution to P. O. Ukposi, Esq.
The issue of the counsel who has the fiat of the Attorney General signing as a private prosecutor does not diminish the power delegated to Mr. Ukposi in this case. The objection in that regard, with due respect, is definitely calculated to sabotage or delay the prosecution in this case.
I agree with my learned brother that there is no substance in this appeal. It is hereby dismissed.
The decision of the Court below delivered on the 5th day of February, 2013 is hereby affirmed. I abide by the consequential orders made in the lead judgment.
Appearances
B. E. I. Nwofor, SAN with E. S. Ayiborienghe (Mrs.)For Appellant
AND
P. O. Ukposi – 1st RespondentFor Respondent
