Billy Ikpongette & Anor. V. Commissioner of Police Akwa Ibom State (2008)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A.

The appellant was the complainant in Charge No.MEK/118C/2002 in the Magistrate’s Court, Eket, Akwa Ibom State. The 1st Respondent was charged in count one of the two count charge with stealing a speed boat valued at N300,000.00 alleged property of Ibeno Public Relation Committee in possession of one Sievoadje Godwin Udi contrary to Section 390 of the Criminal Code Cap. 31 Vol. 2 Laws of Cross River State of Nigeria as applicable to Akwa Ibom State. The second Respondent was charged in Count 2 of the charge with receiving the said boat from the 1st respondent knowing same to have been stolen, an offence punishable under Section 427 of the Criminal Code (supra). The offences were allegedly committed at Upenekang beach Ibeno in Eket Chief Magisterial District of Akwa Thorn State on the 20th day of December, 2001. At the trial before. Udonwa Chief Magistrate II Mr. A. M. Akpa Esq. held a watching brief for the complainant. He appeared with Aniefiok Ekwere, Esq. The prosecution called four witnesses and closed its case on 16/5/03. On 25/9/03 Joe Daniel Esq. led by E. E. Ekanem Esq. for the defence made a no case submission. In the ruling delivered on 17/10/03 the learned trial Chief Magistrate II upheld the No Case Submission and acquitted each of the Respondents (then accused persons) under Section 288 of the Criminal Procedure Law applicable in Akwa Ibom State. On 14/11/03 learned Counsel Mr. Aniefiok Ekwere Esq. filed a notice of appeal against the ruling of the learned trial Chief Magistrate II. He signed the notice as “Solicitor for complainant/appellant”. On 2/6/04 Mr. F. J. Itim, State Counsel filed a motion for extension of time within which the appellant can file additional grounds of appeal and an order to deem the additional grounds filed as properly filed and served. When the motion was called for hearing on 3/5/04. Mr. Itim informed the Court, presided over by Okon J. that “the appeal was filed by a private legal practitioner who was finding …………brief for the applicant. The Section 211 (1)(b) of the Constitution of Nigeria 1999. Counsel for the Respondents said he would rely on the said Section 21(1)(b) of the Constitution in his objection to the hearing of the appeal. The Court adjourned to 18/6/04 for motion to file additional grounds of appeal and/or preliminary objection by the Respondent’s Counsel. On 15/6/04 Mr. Ekanem for the Respondents argued the preliminary objection to which Mr Itim for the appellant replied on 22/7/04. In the ruling delivered on 10/1/04 the learned Judge sitting on appeal Okon J. held that “Aniefiok Ekwere Esq. who was Solicitor holding watching brief for the complainant/appellant was therefore entitled to sign the notice and grounds of appeal. That being the case I am unable to hold that the notice and grounds of appeal as signed by him where (sic) void. Consequently, it is ordered that the preliminary objection raised by the Respondent’s Counsel be and is hereby over-ruled and dismissed.” See page 61 of the records. On 5/1/05 learned Counsel for the Respondents Ekanem Esq. filed a motion in the High Court Akwa Ibom State, Eket Division seeking the trinity reliefs to appeal against the ruling on his preliminary objection to the appeal. The record does not show if and when, the motion was granted.

However, Mr. Ekanem did file a notice of appeal on three grounds on 4/3/05.

From the three grounds of appeal learned Counsel in the appellants’ brief of argument, distilled the following three issues for determination by the Court:

“3.01 Whether or not it is right for the complainant in a criminal case to initiate and maintain an appeal against the decision of the trial Court upholding a no case submission raised by Counsel for the Accused without a fiat sought and obtained from the Attorney-General of the State.

3.02 Whether the State Counsel acting for the learned Attorney-General of the State was right in taking over the appeal initiated by a private Legal practitioner about the ………the learned Attorney-General of the State.

3.03 Whether or not the lower Court was right in raising issues suo motu and relying on same to give his decision in the matter without Galling on the parties to address it.”

The Respondent in the brief of argument filed 26/3/07 adopted the three issues formulated in the appellants’ brief.

Arguing issue one in his brief learned Counsel for the appellant quoted S. 211 (1) of the 1999 Constitution and said that the power of the Attorney-General is limited by sub-section 2 of the said section. He stated that the learned Counsel who held watching brief at the trial did not seek and/or obtained the fiat of the Attorney-General which he said is a sine qua non for any action not specifically initiated by the Attorney-General or officers of his department. He relied on COMMISSIONER OF POLICE vs. EMWAKAYI (2004) ALL FWLR (PT. 211) 1522 AT 1531 RATIO 10. Learned Counsel argued that the notice of appeal could not be taken over by State Counsel. He urged the Court to resolve the issue in favour of the appellant.

In issue 2 learned Counsel said the notice of appeal filed by a private legal practitioner without the fiat of the Attorney-General was void ab initio. He referred to THE BLACK’S LAW DICTIONARY 6TH EDITION p.1573 for the definition of the word void and contended that the appeal does not exist in law and so cannot be taken over by the Attorney-General. He relied on ZANGA V. GOVERNMENT OF KANO STATE (1986) 2 NWLR (PT. 22) 402 AT 410 and urged the Court not to enthrone illegality. He said that the exercise of the power of the Attorney-General in Section 211 (1) of the Constitution is subject to the stricture in sub-section 3 of the said Section. He urged the Court to resolve issue 2 in favour of the appellants.

In issue 3 learned Counsel said the learned trial Judge erred by referring to, and relying on sections 45(2) and 454(3) of the Criminal Procedure Law Cap 39 Laws of Akwa Ibom State in his decision without inviting the parties to address him on the said sections. He relied on ONWUNARI LONG JOHN VS. CHIEF CRAWFORD N. BLAKK & ORS. (1998) 5 SCNJ P. 68 and KOTOYE V. CBN (1989) 1 NWLR (PT. 98) 419. He urged the Court to resolve the issue in the negative. He urged the Court to allow the appeal and set aside the ruling of the lower Court.

In his brief of argument learned Counsel for the Respondent argued issue 1 and 2 together. He relied on Section 451 (1) of the Criminal procedure Law (supra) and submitted that the notice of appeal was validly filed, and the power of the Attorney-General in Section 211 of the 1999 Constitution was properly exercised in taking over the appeal, adding that the Attorney-General is not limited in the exercise of the powers within the said section. He argued that the appellants are not in a position to know whether or not the Attorney-General’s fiat was sought and obtained to initiate the appeal.

He relied on CONTROLLER, NIGERIA PRISONS SERVICES, IKOYI LAGOS & 2 ORS VS. DR. FEMI ADEKUNYE & ORS. (No.1) (2002) 15 NWLR (PT. 790) 318 AT 323-324. He said that the case of COP V. ENWAKAYI (supra) cited by the appellant is not applicable as the appeal here was taken over by the Chambers of the Attorney-General and it is immaterial whether or not a fiat was issued to the private legal practitioner who initiated the appeal. He said that the taking over of the ….. Cured any irregularity in the notice of appeal. He urged the Court to dismiss the appeal on the two grounds from which issues 1 and 2 were framed.

In issue 3 learned Counsel conceded that the trial Court cannot raise issues by itself and rely on same in its decision without calling on the parties to address it on the issues raised which he said was not the case in this appeal. He contended that a trial Court has a duty to deliver a ruling judgment considering the facts of the case and the authorities cited and uncited. He said the Court merely referred to Sections 457(2) and 454(3) of the Criminal Procedure Law to determine whether the notice of appeal was proper or not. He said Counsel for the parties had argued the point but did not advent to the sections of the Law, adding that the Court merely provided “the lacuna which is allowed in law. Counsel argued that the reference to and reliance on the said sections of the law did occasion a miscarriage of justice. He urged the Court to dismiss the appeal on ground 3 of the grounds of appeal.

He urged the Court to dismiss the appeal and affirm the ruling of the Court below.

In his reply brief learned Counsel for the appellant impugned as misinterpretation, misapprehension and misapplication of Section 211 of the 1999 Constitution the assertion of learned Counsel for the respondent that “this power has no limitation.” He said Section 211 (2) of the Constitution envisages exclusion of outsiders unless and until they are permitted to come in through a fiat. He referred to C.O.P. v. EMWAKAYI (supra) 1552 at 1531 ratio 10. He contended that the requirement to have regard to public interest, the interest of justice and prevention of abuse of legal process places a legitimate limitation on the powers of the Attorney-General in the prosecution of criminal matters. He faulted the argument of the Respondent that the taking over of the proceedings cured any irregularity and submitted that the Attorney-General cannot take over what is void.

He referred to NBCI v. INTGAS LTD (2005) 125 LRCN 614 and said the duly to allow parties address it on an issue arises when the Court raises the issue suo motu. He relied on THE STATE VS MOSHOOD OLADIMEJI (2003) 15 NSCQR 173 and UNIVERSITY OF CALABAR v. ESSIEN (1996) 44 RCN 2280 AT 2282.

Learned Counsel urged the Court to reject all the points raised in the Respondent’s Brief and to allow the appeal.

Learned Counsel for the Respondent argued issues 1 and 2 together. The two issues are Interwoven. The fate of the one determines the fate of the other. I will take a cue from learned Counsel and deal with the two issues together, but first, I will dispose of issue 3. Learned Counsel for the appellant impugned the ruling of the lower Court on the ground that that Court referred to, and relied on Sections 453 and 454 of the Criminal Procedure Law of Akwa Ibom State without calling for Counsel’s addresses on the said Sections. He said failure to give the parties the opportunity to be heard violated the right of the appellant to a fair hearing. The relevant portion of the ruling of the lower Court is hereunder reproduced:

“In this case, can it be said that the notice and grounds of appeal filed by the said Aniefiok Ekwere Esq. were incurably bad or void ab initio? To answer the question one way or the other recourse must be made to the relevant statute on the matter. It is Criminal Procedure Law Cap. 39 Laws of Akwa Ibom State to which none of the two Counsel referred in……. course of his argument. Chapter 12 Part 50 of that Law provides for Criminal Appeals from Magistrates’ court to High Courts. Section 451 (2) and 454(3) thereof as well as Forms 24 and 26 in the Schedule to that Law provides that the notice and grounds of appeal shall be signed by the appellant or by his Solicitor.”

See pages 60-61 of the records. There is nothing recondite in the Sections and forms of the Criminal procedure Law invoked by the Court below suo motu to warrant address of Counsel. The lower Court invoked the Law regulating the issue before it. Its reliance on the said sections and forms to determine whether to justify or damnify the notice and grounds of appeal signed by a private legal practitioner who held watching brief for the complainant at the trial without calling learned Counsel to address it on the sections cannot be faulted in the circumstances of this case. Whether the lower Court arrived at the correct decision by relying solely on the said section is a different matter and remains to be seen. As argued by learned Counsel for the Respondent the fact that the lower Court did not invite Counsel to address it on the sections did not cause any miscarriage of justice or prejudice the appellant. In my view ground 3 of the appeal from which issue 3 was distilled was more, or less motivated by the lower Courts mild rebuke for failure of learned Counsel for the parties to refer to the Law regulating the mailer in controversy.

In any case a judge, whether in the trial or appellate Court, is not, and is not expected to be, a rubber stamp of learned Counsel for the parties in the matter of Law and rules, practice and case law applicable to any matter in issue before him. A judge invests time, resources and effort in research in writing a judgment no matter the erudition exhibited by learned counsel in their addresses. It is not practicable and will result to endless delay in the disposal of cases to request …….. to call for address of counsel before he can refer to any law or authority as already referred to by learned counsel for the parties in their addresses. Its not necessary. Therefore issue 3 against the appellant.

Section 211(1)(2) and (3) of the Constitution of the Federal Republic of Nigeria provide “S.211(1) The Attorney-General of the a State shall have power (a) to institute and undertake criminal proceedings against: any person before any Court of law in Nigeria other than a Court-martial in respect of any offence created by or under any law of the House of Assembly;

(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and

(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.

S.211(2) The powers conferred upon the Attorney-General of a State under subsection(1) of this section may be exercised by him in person or through officers of his department.

S.211(3) In exercising his powers under this section, the Attorney-General of a State shall have to the public interest, the interest of justice and the need to prevent abuse of legal process.”

“Criminal proceedings” is not limited to criminal proceedings in the trial Court. The term includes proceedings in the appellate Courts. The State Attorney-General can exercised the powers conferred by S.211 of the Constitution in relation to Criminal proceedings at trial and appellate levels. Also the notice of appeal in a criminal case forms part of the criminal proceedings it initiates. In other words the notice and grounds of appeal filed by a private legal practitioner who held a watching brief for the appellant in the trial Court constitute criminal proceedings within the meaning of S.211(1) of the Constitution. The issue in this appeal is the validity vel non of the criminal proceedings instituted by the private legal practitioner by the filing of the notice and grounds of appeal and ipso facto whether or not the Attorney-General can take over and continue the criminal proceedings. In DIRECTOR OF PUBLIC PROSECUTIONS v. AKOZOR (1962) ALL NLR 235 the then Federal Supreme Court made a distinction between the power of the DPP to commence criminal proceedings by instituting, undertaking or taking over criminal proceedings, and the power to appear for the State after the commencement of the proceedings. The institution undertaking or taking over of criminal proceedings can be done by the DPP in person or delegated to …..department. The latter can be undertaken by the DPP in person or delegated to officers of his department AND to private legal practitioners. Mr. Aniefiok who held watching brief for the complainant at the trial and who instituted the criminal proceedings is or was at the material time) not an officer in the department of the Attorney General of Akwa Ibom State. He could therefore not institute the criminal proceedings with or without the authority of the Attorney-General of Akwa Ibom State.

Learned Counsel for the appellant submitted that the exercise of the power of the Attorney-General of Akwa Ibom State is curtailed by the stricture in subsection (3) of Section 211 of the Constitution. On the other hand learned Counsel for the Respondent contended that the power conferred on the Attorney-General by Section 211 (1) of the Constitution has no restriction. I agree with learned Counsel for the appellant that the requirement of Section 211 (3) that the Attorney-General, in the exercise of his power under Section 211 (1) “shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process” imposes a limitation on the exercise of the power conferred. Sub section (3) of Section 211 of the Constitution, restrictive of the power of the Attorney-General under Section 211 is in practical terms subjective and not justiceable. See the STATE V. ILORI (1993) 3 SCNLR 94. It cannot be relied on to determine the issues in this appeal.

Can it be said, from the available records, that Mr. Ekwere a private legal practitioner who held a watching brief for the complainant at the trial, was expressly or impliedly delegated by the Attorney-General of Akwa Ibom State to institute the criminal proceedings in this appeal? Could delegation by the Attorney-General be implied by the fact of learned Counsel holding, watching brief for the complainant? In strict legal sense the complainant is the Commissioner of police. However, the victim of the alleged crime is usually and popularly referred to as the complainant. The Commissioner of Police could not, from the records, have retained the services of Mr. Ekwere to hold a watching brief for the complainant: If such authority was given orally or in writing it was no so stated in the records of proceedings. It cannot, in the circumstances, be said that the Attorney-General by implication from, and acquiescence in, the fact of private legal practitioner holding a watching brief for the complainant, granted authority to appeal in the matter. In my view learned Counsel Mr. Ekwere was instructed by the victim of the alleged crime to protect their interest in the N300,000 speed boat allegedly stolen but recovered. The complainants for whom the learned Counsel held brief were the victims of the alleged crime and not the Commissioner of Police, the legal complainant. The Attorney-General did not by implication delegate power to Mr. Ekwere to institute criminal proceedings in this appeal. Did the Attorney-General granted express authority to Mr. Ekwere to institute the criminal proceedings? Rather than meet the challenge, learned Counsel for the respondent waffled on whether or not the Attorney-General give his fiat to Mr. Ekwere. First, learned Counsel submitted that the appellants, not being officers in the Chambers of the Attorney-General are not in a position to know whether or not the Attorney-General granted this fiat to the private legal practitioner to institute the proceedings. Secondly, he argued that it is immaterial whether or not a fiat was issue to the legal practitioner to initiate the proceedings and thirdly that any irregularity in the criminal proceedings was cured by the ….. Attorney-General. From what has been said so far Mr. Ekwere cannot institute the proceedings with or without the authority of the Attorney-General and such authority, if it was had and obtained, should have been disclosed. Since no such authority was disclosed the appellants were right to have concluded that none was granted. The notice of appeal, filed by a private legal practitioner is void ab initio. There is nothing that can be taken over by the Attorney-General and the issue of irregularity being cured by the takeover does not arise. Even if a fiat had been issued the notice of appeal would still be void for such fiat can only empower the private legal practitioner to represent the State in an existing criminal proceeding. See DPP v. AKAZOR (supra).

The notice of appeal filed by the private legal practitioner is null and void and consequently, there was no appeal for the Attorney-General to takeover. I resolve issues 1 and 2 in favour of the appellants.

I allow the appeal as meritorious and set aside the ruling of the lower Court. For the purpose of clarity and avoidance of doubt there is no appeal as of now against the judgment of the Chief Magistrate’s Court, Eket Akwa Ibom State in Charge No. MEK/118/C/2002.

Other Citations: (2008)LCN/2853(CA)