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C.O.P. v. Emeakayi

COMMISSIONER OF  POLICE

V

PRINCE KENNETH EMEAKAYI

COURT OF APPEAL

( ENUGU DIVISION )

MAHMUD MOHAMMED, JCA ( Presided and Read the Ruling )

JOHN AFOLABI FABIYI, JCA

MONICA BOLANA’AN DONGBAN-MENSEM, JCA

CA/E/127M/2003

MONDAY, 1ST DECEMBER, 2003

APPEAL - Competence or otherwise of - Attitude of court to application in respect of

APPEAL - Grounds of appeal - Appeal arising from exercise of discretion by trial court - Nature of ground of appeal thereon

APPEAL - Grounds of appeal - Consideration of in the  instant  case  to determine whether leave of court is required or not

APPEAL - Right of appeal to Court of Appeal - Basis of

APPEAL - Right of appeal to Court  of Appeal - Enactments governing Sections 241, 242 and 243 of 1999 Constitution referred to

CONSTITUTIONAL LAW - Constitution 1999, section 211(1) and (2) visa-vis section 69(1)(b)(iii) High Court Law No. 16, 1987 Laws of Anambra State - Constitutionality of delegation of powers conferred on State Attorney - General to private prosecutor

CONSTITUTIONAL LAW - Constitution  1999, section 211(1) (2) and (3) Powers of State Attorney -General to institute and undertake criminal proceedings and powers to delegate same - Manner in which such powers shall be exercised

COURT - Attitude of to application in respect of competence or otherwise of an appeal - Need to hear such application promptly

COURT - Jurisdiction of - When can be raised - Effect of court adjudicating where it lacks jurisdiction

CRIMINAL LAW AND PROCEDURE - Powers of State Attorney-General to institute and undertake criminal proceedings - Manner in which such powers shall be exercised - Need to have regard to public interest, interest of justice and prevention of abuse of legal process

CRIMINAL LAW AND PROCEDURE - Powers of State Attorney-General to institute and undertake criminal proceedings - Powers to delegate such powers - Constitution 1999, section 211(1) and (2) considered

JURISDICTION - Issue of - When can be raised - Effect of court adjudicating where it lacks jurisdiction

STATUTE - Constitution 1999, sections 241, 242 and 243 - Governing enactments on right of appeal to Court of Appeal

STATUTE - Constitution  1999,  section 211(1) (2) and (3) - Powers of State Attorney-General to institute and undertake criminal proceedings and powers to delegate same - Manner in which such powers shall be exercised

STATUTE - Constitution 1999, section 211(1) and (2) viz-a-vis section 69(1) (b)(iii) High Court Law No. 16, 1987 Laws of Anambra State Constitutionality of delegation of powers conferred on State Attorney

-  General to private prosecutor

Issues:

1.             Whether the notice of appeal dated 8th of September, 2003 and motion on notice dated 9th September, 2003 are incompetent.

2.             Whether the delegation of powers conferred on the Attorney General, Anambra State to the respondent counsel, pursuant to section 69(1)(b)(iii), High Court Law No. 16, 1987 Laws of Anambra State, is null and void, same being unconstitutional and contrary to section 211 of the 1999 Constitution.

3.             Whether the fiat granted to respondent counsel by the Attorney -  General, Anambra State pursuant to section 69(1)(b)(iii), High Court Law No. 16, 1987 Laws of Anambra State to prosecute Charge No. 0/205M/03 extends to the prosecution of ancillary proceedings in respect of same.

Facts:

The applicant by a motion on notice dated 18th September, 2003 filed a notice of a preliminary objection to the notice of appeal and motion on notice dated 8th and 9th of September, 2003 respectively, filed by the respondent on the grounds that: (i) leave of court was not obtained before same was filed which leave is necessary the grounds of appeal being grounds of mixed law and fact (ii) the fiat granted by the State Attorney-General did not extend to the prosecution of any appeal which might emanate from the prosecution of Charge No. 0/205M/2003.

The background facts of the case is that, the Onitsha branch of the Nigerian Bar Association had applied to the Attorney-General of Anambra State for a fiat to the respondent counsel, F. A. Andi, Esq. to prosecute the applicant for the murder of Chief Barnabas Igwe and his wife. The AttorneyGeneral in a letter dated the 5th of  December, 2003 granted the respondent counsel authority to prosecute - Charge No. 0/205/M.2003. The authority included ‘powers by the prosecutor to amend and or add to the said charge if necessary’. The Suit No 0/205/M2003 turned out to be an application for bail and not a charge as stated in the letter of authority. The trial Judge at the hearing of the application for bail made an order of adjournment.

Dissatisfied with this, the respondent counsel filed a notice of appeal at the High Court and subsequently an application for stay of proceedings at the Court of Appeal. Leave of court was not sought before the applications were filed.

In determining the notice of objection, the Court of  Appeal considered the following provisions:

Constitution 1999:-

Section 211(1) The Attorney-General of 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  judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.

(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.

(3)          In exercising his powers under this section, the AttorneyGeneral of a  State shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.

High Court Law No. 16 1987 Laws of  Anambra State:-

Section 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.