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.