Prince Kenneth Emeakayi V. Commissioner of Police (2003)

LawGlobal-Hub Lead Judgment Report

MAHMUD MOHAMMED, J.C.A. 

By a motion on notice dated 18-9-2003 and filed in this court on 29-9-2003, the applicant in a preliminary objection sought for an order-

“Striking out the notice and grounds of appeal dated the 8th day of September, 2003 and filed by the respondent at the Onitsha High Court Registry on the same date and also the motion on notice No. CA/E/127M/2003 dated the 9th day of September, 2003 filed in this court pursuant to the said notice of appeal on the ground that the appeal and the motion are incompetent and the court has no jurisdiction to entertain them.”

The motion was supported by an 11 paragraph affidavit deposed to by one Ikenna Obidiegwu one of the applicant’s counsel at the court below. Paragraphs 1 to 10 of this affidavit which are relevant to the present application are as follows:

“1. That I am one of the counsel solicitor for the applicant in the High Court in motion No. 0/205M/2003 and swear to this affidavit with the consent and authority of the leading counsel Tochukwu Onwugbufor, SAN and the applicant/accused.

2. That the counsel have received a copy of the notice and grounds of appeal filed at the Onitsha High Court Registry on the 8th day of September, 2003 together with a motion on notice No. CA/E/127M/2003 dated the 9th day of September, 2003 filed by the appellant/applicant/respondent challenging the order of adjournment made by the Onitsha High Court on 8/9/2003 and asking for stay of proceedings.
3. That the appeal and motion on notice concern or relate to the application for bail in motion No. 0/205M/03 filed at the Onitsha High Court by the applicant who informed me and I verily believe that he has been detained in Onitsha prison since the 6th day of May, 2003 and has since not been arraigned before a court of competent jurisdiction for trial on information which forced the applicant to continue to languish in prison up till now.
4. That during the hearing of the bail application Mr. F.A. Andi tendered a fiat issued by the Hon. Attorney General of Anambra State authorising him to undertake the prosecution of the bail application on behalf of the state. The said fiat is attached herewith as exhibit A.
5. That the fiat only authorizes Mr. Andi of counsel to prosecute the bail application No. 0/205M/2003 in the High Court and no more. It did not authorise him to enter or proceed on appeal to the Court of Appeal in respect of any ruling or decision on the bail application by the High Court. So, I was informed by the leading counsel Tochukwu Onwugbufor, SAN and I verily believe.
6. That I was informed by the said leading counsel and I verily believe that Mr. Andi of counsel needs a fresh fiat from the Attorney-General authorising him to file an appeal in respect of any ruling on the bail application before he can competently commence an appeal and having not obtained such fiat the present appeal and motion or stay of proceedings filed pursuant to the appeal are incompetent.
7. That up till now the Attorney-General has not filed any information charging the accused to court for any offence which has occasioned a great injustice by ensuring the continued incarceration of the applicant in prison up till now.
8. That the bail application concerns the freedom and liberty of the accused individual who has not been charged of any offence before a court of competent jurisdiction.
9. That the appeal and the motion on notice are mere delay tactics intended to ensure the endless detention of the applicant in prison, which delay started right from the Onitsha High Court where the prosecutor filed a motion accusing the Judge of bias and telling the Judge in his face in the open court that he the Judge collected a bribe of N20,000,000.00 (Twenty Million Naira).
10. That it is expedient in the interest of justice that the matter is determined expeditiously as the fundamental right of the applicant is affected.”

A further affidavit in support of the application was filed on 23-10-2003 and paragraphs 4-7 of this further affidavit which are relevant read –

“(4) That this appeal is an interlocutory appeal touching on the exercise of discretion of the trial court to grant an adjournment.

(5) That my principal counsel Tochukwu Onwugbufor, SAN informs me and I really believe that an appeal on exercise of the court’s discretion is an appeal on mixed law and fact which requires the leave of court before the appeal can be sustained.

(6) That the applicant did not obtain the leave of this court or of the High Court before filing the appeal.

(7) That the appeal is not bona fide as it is intended to cause delay to the hearing of the application for bail now pending at the High Court Onitsha and to harass the respondent.

In opposing the motion on preliminary objection, a counter affidavit deposed on behalf of the respondent on 28-10-2003 averred the following relevant paragraphs 1 – 13:

“1. That I am the elder brother of the assassinated Barnabas Igwe, Esq. who was butchered to death with his wife and unborn child by the accused/respondent/applicant and his gang of murderers and as such I am conversant with the facts of this case.

2. I have the consent of the state and the prosecuting counsel to depose to the affidavit.
3. That I have read the affidavit of urgency sworn on the 29th September, 2003, and the affidavit in support of motion on notice dated 18th day of September, 2003.
4. That paragraphs 5, 6, 7, 8, 9 and 10 of the affidavit in support of the motion on notice are false.
5. That F.A. Andi, Esq. of counsel for the prosecution informed me and I verily believed him that paragraphs 7, 8 and 9 are completely irrelevant to the application brought by the applicant.
6. That the application for bail is not before the Honourable Court of Appeal.
7. That F.A. Andi of Counsel for the prosecution did not at anytime accuse the presiding Judge Hon. Justice Peter C. N. Umeadi of taking N20m bribe.
8. That F.A. Andi, Esq. of counsel for the prosecution informs me and I verily believe him that facts stated in paragraph 9 of the affidavit in support of the motion on notice and paragraph 5 of affidavit of urgency are subjects of criminal proceedings at the High Court of Anambra State holding at Onitsha.
9. That F.A. Andi, Esq. also informs me and I verily believe him that the appeal being referred to is an interlocutory appeal in motion No. 0/205M/2003.
10. Hereto annexed as exhibit A is a copy of the application for authority to prosecute suit No. 0/205M/2003.
11. That the authority to prosecute given to F A. Andi, Esq. did not limit the scope of his powers with regards to motion No. 0/205M/2003 so F.A. Andi, Esq. informs me and I verily believe him.
12. That F.A. Andi, Esq. informs me and I verily believe that the interlocutory appeal is part of the prosecution of motion No. 0/205M/2003.
13. That without motion No. 0/205M/2003 the appeal complained of cannot exist so F.A. Andi, Esq. advised me and I verily believed him.”

Moving the motion on preliminary objection on 29-10-2003, learned senior counsel for the applicant, Mr. Onwubufor relied on the affidavit in support of the motion and the fiat issued to Mr. F.A. Andi, learned counsel to the respondent to defend the respondent application for bail at the court below as exhibit A to the affidavit.

Also relied upon in support of the application was the further affidavit filed in respect to the counter-affidavit. It was argued that as the interlocutory appeal was predicated on exercise of discretion by the court below in application for adjournment, the grounds of appeal are of mixed law and fact which required leave of the court below or this court before filing. That as no leave was sought and obtained by the respondent before filing the notice and grounds of appeal; the appeal is incompetent and must be struck -out. Several cases relied upon include Ifediorah v. Ume (1988) 2 NWLR (Pt.74) 5 at 16 and Attorney-General Anambra v. Onitsha North Local Government (2001) 9 NWLR (Pt. 717) 105.

On the issue of fiat to the learned counsel to the respondent, the learned senior counsel observed that by section 211 of the 1999 Constitution, a State Attorney-General can only exercise his powers on matters of criminal prosecution personally or act through the staff of his office. That as the power to grant fiat under section 69 of the High Court Law of Anambra State appears to be in conflict with section 211 of the Constitution, that provision must be read with such modification to bring it into conformity with the provision of the Constitution on the authority of Attorney-General Ogun State v. Attorney-General of the Federation (1982) 3 NCLR 166, (1982) 1 – 2 SC 13 and section 1(4) of the 1999 Constitution. Learned senior counsel urged the court to hold that the fiat issued to the respondent’s counsel to defend the application for bail at the trial High Court is null and void and cannot operate to allow the respondent’s counsel to appeal to this court against the ruling of the trial High Court.

In the alternative, learned senior counsel submitted that on the terms as contained in the fiat, the learned counsel to the respondent has no right to appeal against the ruling of the trial High Court as the terms of the fiat issued to him were limited to the defence of the application for bail pending before that court. It was argued that the respondent’s counsel required a fresh mandate through another fiat from the Hon. Attorney-General before he could appeal relying on the case of Rex v. Aiyeola 12 WACA 324-326.

Mr. Andi of counsel, in his response to the arguments in support of the preliminary objection said he had filed a counter affidavit of 14 paragraphs to which the application by the Onitsha Branch of the Nigerian Bar Association to the Hon. Attorney-General, Anambra State for the issuance of the fiat to the learned counsel was exhibited.

Relying on the counter affidavit, Mr. Andi contended that the grounds of appeal contained in the notice of appeal filed by him are grounds of law only and therefore required no leave of court to file them. He cited and relied on the cases of A.C.B. v. Crestline Services Ltd (1991) 6 NWLR (Pt. 197) 301 and Metal Construction Company (West Africa) Ltd. v. Migliore & Ors. (1990) 1 NWLR (Pt. 126) 299 at 315. He argued further that the appeal affected the respondent’s right to fair hearing and that the appeal being on undisputed facts was an appeal on ground of law.

On the issue of fiat to him, learned counsel maintained that it conferred on him not only powers to prosecute the charge No. 205m/2003, but also includes power to prosecute any ancillary proceedings arising out of the matter pending at the trial High Court.

In a short reply, learned senior counsel for the applicant in the preliminary objection pointed out that the word ‘includes’ in the terms of the fiat is exhaustive and does not go beyond or outside the powers enumerated in the fiat and that the terms of the application for the fiat are not what was actually granted by the Hon. Attorney- General.

The circumstances surrounding the raising of preliminary objection to the notice and grounds of appeal dated 8-9-2003 and filed by the respondent the same day at the court below and the motion on notice No. CA/E/127M/2003 for stay of proceedings dated 9-9-2003 and also filed by the respondent in this court, have been outlined in the affidavit and further affidavit in support of the preliminary objection and the counter-affidavit opposing it.

A right of appeal to the Court of Appeal is a constitutional right exercisable by a party aggrieved with the decision of a trial court from whose decision appeal goes to the Court of Appeal. See Eyesan v. Sanusi (1994) 4 SC 15, (1984) 1 SCNLR 353. The cases in which appeals lie from the High Court to the Court of Appeal are enumerated, regulated and set out in sections 241, 242 and 243 of the 1999 Constitution. Section 241, sets out cases, with certain exceptions, in which appeals lie from the decision of a High Court to the Court of Appeal as of right and section 242 deals with cases in which appeal lies with leave.

The question is, could the appellant in the present case appeal as of right under the provisions of section 241 of the 1999 Constitution? If the appellant could not appeal without leave, then clearly the appeal is incompetent and this court has no jurisdiction to entertain it. Uwais, JSC (as he then was) said in the case of State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33 at 48 at follows-

“It has been said time without number that the issue of jurisdiction of a court is fundamental. Its being raised in the course of proceedings can neither be too early or premature nor too late. For if there is a want of jurisdiction, the proceedings of the court will be affected by a fundamental vice and would be a nullity however well conducted the proceedings might otherwise be.”

In other words, where the competence of an appeal is in issue, the objection must be heard and determined promptly. See Oloriode v. Oyebi (1984) 1 SCNLR 390 and Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314.

It was argued in the present case that the appellant’s notice and grounds of appeal were filed pursuant to the provisions of sections 241(1)(b) in that the appeal is purely on question of law therefore no leave was required as the appeal is as of right. In considering the grounds of appeal for the purpose of determining whether or not leave to appeal is required in a particular case, the couching of a ground of appeal on the facts as a ground of law does not make it a ground of law as stated in Board of Custom & Excise v. Barau (1982) 10 SC 48.

As the appeal in question arose out of an application for adjournment, the learned trial Judge no doubt has discretion in granting the application. In cases of discretion such as this, a trial court will proceed on the material facts placed before it and equally an appeal court will also proceed on the material facts on the record. See University of Lagos v. Olaniyan (1985) 1 NWLR (Pt.1) 156 at 159.

As the principles and manner in which a Judge ought to exercise his discretion in a particular case is a question of fact, depending on the facts and circumstances of each case, whether or not the discretion is exercised rightly in any particular case is, at least a question of mixed law and fact. See Ifediora v. Ume (1988) 2 NWLR (Pt. 74) 5 and NNSC v. Establishment Sima of Vaduz (1990) 7 NWLR (Pt. 164) 526.

I have carefully examined the 3 grounds of appeal contained in the notice of appeal dated 8-9-2003 and filed at the court below on the same date and there is no doubt that ground 3, being an omnibus ground that the ruling of the court below is against the weight of evidence, is a ground of fact. The complaint of the appellant in ground one on the other hand is that the time granted by the court below for the appellant to move his motion is grossly inadequate which involve mixed law and fact. Similarly, the complaint in ground two of the grounds of appeal is against the conduct of the learned trial Judge in rushing to complete the hearing of the application before him, before the end of the vacation of the court. Whether this conduct of the learned trial Judge was right or wrong, certainly involve a question of fact. In any case, the very fact that the notice of appeal contains an omnibus ground of appeal shows that the appeal against the exercise of discretion of the learned trial Judge in granting or refusing the application for adjournment in this case, has ruled out any argument that the appeal is on question of law alone.

Therefore, the appeal not being one that could have been filed as of right under section 241 (1)(b) of the 1999 Constitution, required leave of the trial court or of this court before filing the notice of appeal in accordance with the requirement of section 242 of the 1999 Constitution.

Accordingly, having regard to all the circumstances of this case, I am of the firm view that the notice of appeal dated 8-9-2003 and filed at the court below the same date, which is the subject of attack in the preliminary objection, is clearly incompetent. Consequently, the motion on notice for stay of proceedings No. CA/E/127M/2003 predicated on that notice of appeal is also incompetent.

I shall now proceed to examine the second ground upon which the notice of appeal and the motion on notice No. CA/E/127M/2003 were challenged as being incompetent. The question for determination here is whether Mr. Andi of counsel who was granted fiat by the Hon. Attorney-General of Anambra State to prosecute the case in charge No. 0/205M/2003 pending at the court below could exercise right of appeal against the decision of that court on his application for adjournment. There is no doubt that the Attorney General of a state has power under section 211(1) of the 1999 Constitution 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.

He also has power to take over and continue any such criminal proceedings that may have been instituted by any other authority or person and 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 also provided by sub-section (2) of section 211 of the 1999 Constitution that these powers conferred upon the State Attorney-General under the Constitution may be exercised by him in person or through officers of his department. In exercising these powers however, the Attorney-General shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process. These provisions contained in section 211(1), (2) and (3) of the Constitution are clear and unambiguous.

They require no interpretation necessitating unusual cannon of construction. The provisions must be read in their plain and ordinary words which best give their meaning. See Ifezue v. Mbadugha (1984) 1 SCNLR 427 and A.-G., Ondo State v. A.-G., Federation (2002) 9 NWLR (Pt. 772) 222 at 418 where Uwaifo, J.S.C. in construing powers of the Attorney General of the Federation under section 174 of the 1999 Constitution had this to say –

“It must be recognized that our Constitution is an organic instrument which confers powers and also creates rights and limitations. It is the Supreme law in which certain first principles of fundamental nature are established. Once the powers, rights and limitations under the constitution are identified as having been created, their existence cannot be disputed in a court of law. But their extent and implications may be sought to be interpreted and explained by the court in cases properly brought before it. All agencies of government are organs of initiative whose powers are derived either directly from the Constitution or from laws enacted thereunder. They therefore stand in relationship to the constitution as it permit of their existence and functions. The Attorney General of the Federation derives his powers under section 174 of the Constitution as an agency of the Federal Government. The law is well established that the court cannot control the manner he exercises his powers so conferred. See State v. Ilori (1983) 1 SCNLR 94. Nor can he be prevented from exercising his functions on the grounds that his jurisdiction does not extend to any particular State in Nigeria. Section 174 of the Constitution does not impose any such limitation.”

Guided by this exposition of the law on section 174 of the Constitution which contains identical provisions with section 211 on the powers of State Attorney-General now under consideration in the present case, I do not agree with the argument of Mr. Onwubufor, learned senior counsel that the provisions of section 69(1)(b) (iii) of the High Court Law of Anambra State are in conflict with section 211 of the Constitution. As powers of the Attorney-General are derived either directly from the Constitution itself or from laws enacted or deemed enacted under the Constitution, I find the power exercised by the Anambra State Attorney-General under section 69(1) of the High Court Law, which is an existing law under the Constitution, validly exercised. See Layiwola v. The Queen (1959) SCNLR 279, (1959) 4 SC 119-120. Therefore, the fiat issued to Mr. Andi by the Attorney-General to prosecute case No. 0/205M/2003 pending at the court below is neither void nor a nullity as contended.

What I have to determine next is whether having regard to the terms contained in the instrument on fiat, Mr. Andi could have exercised the right to appeal against the ruling of the trial court. The instrument described as fiat by the parties reads –

“Government of Anambra State of Nigeria

Attorney-General’s Chambers,

Ministry of Justice,

P.M.B. 5086,

Awka.

CHARGE No. 0/205M/2003

Prince Kenneth Emeakayi

v.

The Commissioner of Police

AUTHORITY TO PROSECUTE

In exercise of the powers conferred by section 69(1) (b) (iii) of the High Court Law No. 16 of 1987 of Anambra State of Nigeria, and all other powers enabling me in that behalf, I, Chief Udechukwu N. Udechukwu SAN Attorney-General of Anambra State of Nigeria do hereby authorize Faustinus Andi solicitor and advocate of the Supreme Court of Nigeria, to prosecute the above case, namely: Charge No. 0/205M/2003 Prince Kenneth Emeakayi v. Commissioner of Police.

It is hereby specifically provided that this authority includes powers by the prosecutor to amend and or add to the said charge if necessary.

Dated at Awka this 5th Day of September 2003.

Signed

Chief Udechukwu N. Udechukwu SAN

Hon. Attorney-General.”

It is quite clear from the terms of this instrument that it was predicated on the existence of a criminal case in which the accused Prince Kenneth Emeakayi had been charged to court to face a trial for an offence under the law. However, from the facts relied upon by the applicant in the preliminary objection in the affidavit and counter-affidavit of the respondent in this court, the accused who had been in prison custody since 6-5-2003, had not been charged to court. Consequently, the accused filed a motion on notice for bail at the court below and it is the motion for bail that bears the No. 0/205M/2003.

Thus, what was pending at the court below when the application for fiat was made by the Onitsha Branch of the Nigerian Bar Association to the Hon. Attorney-General of Anambra State and the subsequent fiat issued to Mr. Andi to prosecute, was not a criminal case in which the accused had been charged with an offence but an application by motion on notice for bail. For this reason the terms of the fiat must be construed on the reality of facts on the ground which is confined to the defence of the application for bail rather than prosecuting a criminal case which was yet to be brought to court.

It is quite clear from the application by the Nigerian Bar Association Onitsha Branch to the Attorney-General for the issuance of the fiat to Mr. Andi that they were quite aware of the nature of the case pending at the court below. The terms of the fiat applied for according to the letter dated 5-4-2003 read-

“We respectfully request for the issuance of your authority to prosecute and defend the aforementioned quasi-criminal proceedings and any ancillary proceedings that may result therefrom, to F.A. Andi, Esq. a member of the Onitsha Branch of the Nigeria Bar Association on the ground of public policy.”

That letter described the matter in respect of which the application was made as “suit No. 0/205M/2003” which from the affidavit evidence turns out to be a motion for bail.

Although the request for the fiat was to prosecute and defend the application for bail proceedings and any ancillary proceedings that may result therefrom, the power granted in the fiat is power to prosecute and not to defend. The fiat also excluded specific power requested to prosecute and defend any ancillary proceedings that may result or arise from the proceedings for the application for bail.

Instead, the fiat granted power to amend and or add to the charge which was not specifically requested as there was no charge in existence.

Section 69(1) of the High Court Law of Anambra State under which the Attorney-General exercised his powers reads –

“69(1) Subject to this section, in the case of 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

(iii ) a legal practitioner duly authorized in that behalf by the Attorney-General, or

in revenue cases authorized by the head of the department concerned.”

There is no doubt at all that the powers of the Attorney-General of Anambra State was rightly exercised under section 69(1)(b)(iii) of the High court Law quoted above to allow Mr. Andi to appear on behalf of the State to prosecute the application for bail by the applicant then pending at the court below. However, the terms of this authority specifically granted to Mr. Andi of counsel to prosecute the application for bail, does not include the power to prosecute any other ancillary proceedings that might arise from the proceedings for the application for bail, such as power to appeal to the Court of Appeal against any decision of the court arising from the proceedings.

This power to prosecute ancillary proceedings was specifically requested for in the letter by the Nigerian Bar Association. The fact that this power was not included in the powers granted to Mr. Andi to prosecute the application for bail means that the owner of the power had decided to retain it to himself. The irresistible presumption in this respect therefore is that the power to appeal against any decision of the court below arising from the proceedings for the application for bail, still lies with the Attorney-General of Anambra State who has the right to exercise it in accordance with the law. In other words, without specific authority in this regard, Mr. Andi of counsel has no right to file the notice of appeal dated 8-9-2003. The preliminary objection therefore succeeds on this ground as well.

In the result, the preliminary objection to the notice and grounds of appeal dated 8-9-2003 and filed the same day at the court below succeeds and the same is hereby allowed. The notice and grounds of appeal having been found incompetent is hereby struck out. Consequently, the motion on notice No. CA/E/127M/2003 dated 9-9- 2003 and filed in this court the same day for a stay of proceedings of the bail application at the court below, which motion is predicated on the notice and grounds of appeal now struck out, is also declared incompetent and is accordingly hereby struck out.

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Other Citations: (2003)LCN/1499(CA)