Mrs. Mopelola Saidu V. The State & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

The appellant is one of the four (4) persons arraigned at the Chief Magistrate’s Court Port Harcourt, on charge no. PMC/443C/2004. The Attorney General of Rivers State (then one K. A. Chikere, Esq.) had felt at some point that it was better the trial of these four (4) persons be conducted in the High Court of Justice of Rivers State and that a private legal practitioner, P. O. Ukposi, Esq., should represent him in the prosecution of the said four (4) persons at the High court.

The Attorney General on 18th May, 2010 under his own hand issued fiat no. MJ/DPP/236/S.10/vol.XIV/275 under the title: CHARGE NO.: PMC/443c/12004 – THE STATE v. LACHMAN PUNJABI & 3 ORS; AUTHORITY TO PROSECUTE. The fiat copied at page 128 of the Record states:

“By virtue of the powers conferred on me by Section 77 (1) (a) (iii) of the High Court’s Law (Cap. 62, Laws of Rivers State of Nigeria, 1999) and of all powers enabling me in that behalf, I, K.A. CHIKERE; ESQ. HONOURABLE ATTORNEY-GENERAL of Rivers State of Nigeria hereby authorize P. O. UKPOSI, ESQ., Legal Practitioner of No. 27 ABA ROAD, PORT HARCOURT, to represent the prosecution by preferring information on the above mentioned charge before the High Court of Justice of Rivers State, Port Harcourt.

For the avoidance of doubt, it is hereby declared that the said P. O. UKPOSI, ESQ. is further authorized to add to or alter the charge in the aforesaid criminal proceedings as the High Court may permit.

DATED AT PORT HARCOURT THIS 18TH DAY OF MAY, 2010.

(SIGD)

K. A. CHIKERE, ESQ.,

HONOURABLE ATTORNEY-GENERAL & COMMISSIONER FOR JUSTICE, RIVERS STATE.

On the authority of the said fiat P. O. Ukposi Esq., describing himself as “private prosecutor”,signed an information sheet containing a four count charge of various offences against the appellant and 3 others. In signing the information P. O. Ukposi, Esq. loudly stated thereunder that he was doing so:

FOR: Honourable Attorney-General of Rivers State Ministry of Justice, Port Harcourt.

This fact, that P. O. Ukposi signed and filed the information for the Attorney-General, is not in dispute. The information together with the proofs of evidence were filed by the said P. O. Ukposi Esq. on 6th August, 2010 at the High Court of Rivers State, holden at Port Harcourt. It carried charge no PHC/1874CR/2010.

Upon being served the information and the proof of Evidence, the 3rd and 4th accused persons, through B.E.I. Nwofor, SAN, filed notice of preliminary objection on 19th December, 2010 alleging “that this court has no jurisdiction to entertain this case”. The 3rd Accused/objector is the present Appellant. The grounds for the objection are as follows:

1. By virtue of Section 341 (1) of the Criminal Procedure Law, Cap. 38, volume 2, Laws of Rivers State of Nigeria, 1999, all informations shall be signed by a law officer on behalf of the state. This mandatory statutory requirement and provision was violated in the instant case in which the purported information was signed by P. O. UKPOSI, ESQ. who is not a law officer.
2. The purported information was not filed by the Honourable Attorney-General of Rivers State or by a law officer in his Department or on his behalf.
3. The purported information is vitiated by the inherent contradiction depicted by the fundamental defect exemplified by the allegation that P. O. UKPOSI was given fiat to prosecute on behalf of the Attorney General of Rivers State (which implies that the prosecution is being undertaken on behalf of the Attorney-General) and by the fact of P.O. UKPOSI signing the information as “private prosecutor”. One information cannot validly be filed in the dual capacities of “on behalf of the Attorney-General with his fiat” and “as a private prosecutor”. Both are mutually exclusive and unknown to law.
4. The purported information does not satisfy the mandatory statutory requirements of information by a private person as laid down in Section 342 (a) and (b) of the said Criminal Procedure law in that

(a) It does not have endorsed thereon a certificate by a law officer to the effect that he has seen such information and declines to prosecute at the public instance the offence therein set forth; and