NWAFORAGU v. STATE
(2021)LCN/15061(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Thursday, March 11, 2021
CA/AW/32C/2017
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Isaiah Olufemi Akeju Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
CHIEF OKECHUKWU NWAFORAGU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
MEANING OF FIAT
A fiat is the conferment of power on another by a person having competent authority on the issue upon which the fiat is given in matters of prosecution. A typical example of such is the fiat issued by the Attorney General of the Federation or the Attorney General of a State. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
WHETHER A PRIVATE LEGAL PRACTITIONER CAN PROSECUTE A CRIMINAL MATTER ON BEHALF OF THE STATE
The Attorney General or Law Officers in the Ministry of Justice or Private Legal Practitioner with the authority from the Attorney General can institute criminal proceedings in Court. A Private Legal Practitioner can prosecute a criminal matter on behalf of the State with authority from the Attorney General issued by way of a fiat. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
POSITION OF THE LAW REGARDING THE THE PERIOD FOR THE VALIDITY OF A GRANTED FIAT
The attack by Counsel for the Appellant is basically that the learned prosecuting Counsel was given fiat to prosecute Charge No MID/136C/2014 and was never authorised to initiate a fresh information at the High Court in Charge No HID/19C/2014 which, according to him, is an entirely new Charge. Records show that it is the same case which started at the Chief Magistrate Court for which a fiat was issued by the Attorney General to the Prosecuting Counsel that continued to the High Court. Counsel for the Appellant made heavy weather on the change of the Charge number from MID/136C/2014 to HID/19C/2014. This is rather puerile. This is so because charge numbers differ and change according to the hierarchy of Courts even though in respect of the same case. The Supreme Court laid this to rest in NNAKWE V. THE STATE (2013) LPELR 20941 (SC) thus: “… Once a fiat is granted to a Counsel to prosecute or defend a case, the validity of the fiat would continue throughout the duration of the case for which the fiat was granted.” PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant filed this Appeal against the Ruling of the High Court of Anambra State Idemili Judicial Division, holding at Ogidi Coram P. N. T. Otti, J, delivered on the 26th day of January, 2017, wherein the Learned Trial Judge dismissed the application of the Appellant challenging the information filed by Private Counsel.
SUMMARY OF FACTS:-
The Appellant was arraigned at the Magistrate Court Idemili Magisterial District on a two count charge of
i. Conspiracy contrary to Section 495 (a) of the Criminal Code of Anambra State 1991 as amended
and
ii. Promoting of local war contrary to Section 86 of the same Criminal Code of Anambra State.
Chief Ikenna Egbuna Esq (now SAN) obtained a fiat issued by the Attorney General of Anambra State to prosecute this Suit. The fiat is dated the 13th day of March, 2014.
The trial Magistrate subsequently transferred the case for trial at the High Court. Consequently, Chief Ikenna Egbuna filed an information on the 12th of May, 2014. Sequel to the filing of the information by Ikenna Egbuna (SAN),
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the Appellant by a Motion HID/1608M/14 dated the 23rd of May, 2014 challenged the competence of Chief Ikenna Egbuna’s appearance in the matter as well as his authority to file an information to initiate criminal proceeding against the Appellant using the same fiat which was tendered as evidence at the Magistrate Court.
In a considered Ruling delivered on the 26/1/2017, the learned trial Judge dismissed the application of the Appellant challenging the filing of the said information. This Appeal is predicated on the said Ruling.
Learned Counsel for the Appellant H. N. C. Moghalu Esq distilled six issues for determination as follows:
1. “Whether the learned trial Judge was right when she formulated an issue that did not arise from the substance of the application before her for determination and to rely on the said wrongly formulated issue to dismiss the application of the Appellant?
2. Whether the fiat to prosecute charges No: MID/136C/2014 equally authorized the private prosecuting counsel to initiate and file charge No: HID/19C/2014 against the same defendant?
3. Whether it was the same case that started at the Magistrate
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Court, that continued at the High Court and therefore the learned prosecuting Counsel need not obtain a fresh fiat?
4. Whether change in the number of the charge at Magistrate Court from MID/136C/2014 to HID/19C/2014 a High Court number, does not show distinct and independent criminal charge and is of no moment?
5. Whether the objection as to the competence of the information filed, raised by the Appellant’s Counsel was pre-mature and would have waited until after the tendering of fiat by the prosecuting counsel?
6. Whether the learned trial Judge was right when she held that the objection raised by the Appellant was clearly misconceived and accordingly dismissed and/or struck out same?”
Learned Counsel for the Respondent Chief Ikenna Egbuna Esq on the other hand distilled a sole issue for determination thus:
“Whether the prosecuting Counsel, Chief Ikenna Egbuna Esq. (now SAN) has the requisite authority to prosecute this case against the Defendant in the High Court of Anambra State.”
In his brief of argument, learned Counsel for the Appellant H. N. C. Moghalu Esq, submitted, in summary, that
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the learned trial Judge was wrong when she formulated an issue that did not arise from the complaints of the Appellant and relied on the resolution of that issue, to dismiss and/or strike out the application of the Appellant.
He contended that the fiat issue to prosecute charge No MD/136C/2014 did not authorize the private prosecuting Counsel to initiate and file Charge No HID/19C/2014 against the Appellant. He posited that the fiat was tied to charge No MID/136C/2014 which upon its completion, expired.
Counsel argued that it was not the case that started at the Magistrate Court with Charge No MID/19C/2014 that continued at the High Court in Charge No HID/19C/2014. He argued further that the case at the Magistrate Court was a remand proceeding and that of the High Court was a substantive Criminal Charge. That charge No MID/136C/2014 therefore ended when the remand proceeding was conducted.
He opined that the change in number of the case from MID/136C/2014 to HID/19C/2014 was of great moment because charge No HID/19C/2014 is a substantive charge and not an appeal arising from MID/136C/2014.
Counsel argued further that the objection raised
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as to the competence of the charge No HID/19C/2014 was not premature but was raised timeously being an issue of jurisdiction and that it was erroneous for the learned trial Judge to conclude that the objection raised by the Appellant was misconceived.
He prayed this Court to allow this Appeal and set aside the said Ruling.
Reacting to the foregoing, learned Counsel for the Respondent, Chief Ikenna Egbuna (SAN) contended that the learned trial Judge was right in dismissing the motion of the Appellant on the competence of the charge referred to the High Court as the charge was the same as that of the Magistrate Court.
Counsel argued that the Private prosecutor with the fiat of the Attorney General need not obtain a fresh fiat to prosecute the same case at the High Court.
He then prayed this Court to dismiss this Appeal.
The six issues formulated by Counsel for the Appellant are too numberous and rather unnecessary. The issues distilled by both Counsel can conveniently be compressed into one straight forward issue of narrow compass thus:
“Whether on the facts and circumstances of this case, the learned trial Judge was right
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to hold that the objection raised by the Appellant was misconceived and proceeded to rule that the Private Prosecutor could prosecute with the same fiat both at the Magistrate Court and High Court.”
A fiat is the conferment of power on another by a person having competent authority on the issue upon which the fiat is given in matters of prosecution. A typical example of such is the fiat issued by the Attorney General of the Federation or the Attorney General of a State.
The Attorney General or Law Officers in the Ministry of Justice or Private Legal Practitioner with the authority from the Attorney General can institute criminal proceedings in Court.
A Private Legal Practitioner can prosecute a criminal matter on behalf of the State with authority from the Attorney General issued by way of a fiat.
The attack by Counsel for the Appellant is basically that the learned prosecuting Counsel was given fiat to prosecute Charge No MID/136C/2014 and was never authorised to initiate a fresh information at the High Court in Charge No HID/19C/2014 which, according to him, is an entirely new Charge.
Records show that it is the same case
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which started at the Chief Magistrate Court for which a fiat was issued by the Attorney General to the Prosecuting Counsel that continued to the High Court. Counsel for the Appellant made heavy weather on the change of the Charge number from MID/136C/2014 to HID/19C/2014. This is rather puerile.
This is so because charge numbers differ and change according to the hierarchy of Courts even though in respect of the same case. The Supreme Court laid this to rest in NNAKWE V. THE STATE (2013) LPELR 20941 (SC) thus:
“… Once a fiat is granted to a Counsel to prosecute or defend a case, the validity of the fiat would continue throughout the duration of the case for which the fiat was granted.”
In dismissing the Application brought by the Appellant at the lower Court, the learned trial Judge stated thus:
“The objection raised by the defence Counsel in this application is clearly misconceived and this application is accordingly dismissed and or struck out.”
I agree entirely with the learned trial Judge. This Appeal is most frivolous and a mere waste of time.
In the premise, there is no merit whatsoever in
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this Appeal. It is accordingly dismissed in its entirety. The sole issue is resolved against the Appellant and in favour of the Respondent. The Ruling of P. N. T. Otti, J, of the Idemili Division of the Anambra State High Court holden at Ogidi delivered on the 26th day of January, 2017, in HID/19C/2014 is hereby affirmed.
ISAIAH OLUFEMI AKEJU, J.C.A.: I read the judgment of my learned brother, CHIOMA NWOSU-IHEME, JCA. I agree with the reasoning and conclusion therein. I find no merit in the appeal and I dismiss it accordingly.
I abide by the consequential Orders.
PATRICIA AJUMA MAHMOUD, J.C.A.: I have read the lead judgment of my learned brother CHIOMA NWOSU-IHEME, JCA just delivered.
I agree with his Lordship that this appeal is devoid of merit and should be dismissed. I accordingly dismiss the appeal.
I also affirm the decision of the trial lower Court.
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Appearances:
I. Nnadi For Appellant(s)
Chief Ikenna Egbuna, SAN For Respondent(s)
