Lucy Onwudinjo V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment)

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.

He 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.

The appellant’s brief of argument, settled by Obiora W. Abonyi, Esq., was dated 10th March, 2013 but filed on 13th March, 2013. Four issues were distilled for determination from the sole ground of appeal. The respondent’s brief of argument settled by J. O. N. Ikeyi, Esq., for the respondent, was dated 21st May, 2013 but filed on 2nd August, 2013. In it, a sole issue for determination was formulated for the determination of the appeal.

The appellant’s reply brief of argument dated 20th August, 2014 and filed on 29th September, 2014 was deemed as properly filed and served by this court on 30th September, 2014. At the hearing of the appeal on the same 30th September, 2014, each learned counsel adopted his brief of argument as their submissions on the appeal.

There are some preliminary skirmishes with respect to the appellant’s ground of appeal. In the respondent’s brief of argument, a notice of preliminary objection was raised at paragraphs 4.00 – 4.01, inter alia:

“4.00 NOTICE OF PRELIMINARY OBJECTION

4.01.TAKE NOTICE that the respondent will at or before the hearing of the above appeal pray the court to strike out the sole ground of appeal in the notice of appeal and the issues for determination in the appellant’s brief on the grounds that:

i. The sole ground of appeal which does not flow from the judgment of the court below and issues distilled therefrom are incompetent and liable to be struck out by the court.

ii. The particulars in support of the ground of appeal do not flow from the judgment of the court and no leave was sought and obtained before the particulars were included in the ground of appeal.

iii. The issues formulated from the sole ground of appeal which do not flow from the said ground of appeal are incompetent and liable to be struck out by the court.”