⦿ CASE SUMMARY OF:
Lucy Onwudinjo v. The State (2014) – CA
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Tom Shaibu Yakubu, J.C.A.
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
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.
The trial Judge 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.
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.
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. 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.
ii. 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
EMMANUEL AKOMAYE AGIM, J.C.A.
Section 211(1) CFRN 1999;
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
The apex court (in Comptroller, Nigerian Prisons Services, Ikoyi, Lagos & Ors v. Dr. Adekanye & Ors (2002) LPELR 891 SC) 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.
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.”
⦿ NOTABLE DICTA
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. – Shaibu Yakubu, J.C.A. ONWUDINJO v. STATE (2014)
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. – Shaibu Yakubu, J.C.A. ONWUDINJO v. STATE (2014)
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. – Shaibu Yakubu, J.C.A. ONWUDINJO v. STATE (2014)
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. – Shaibu Yakubu, J.C.A. ONWUDINJO v. STATE (2014)
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. – Shaibu Yakubu, J.C.A. ONWUDINJO v. STATE (2014)